Last September, President Biden announced three COVID-19 vaccine mandates that could apply to private-sector workers:
- An OSHA Emergency Temporary Standard (or “ETS”) requiring employers with 100+ employees to either be vaccinated or submit to weekly COVID-19 testing by January 4, 2022 –
CURRENTLY BLOCKED FROM BEING ENFORCED
- Executive Order 14042, which requires covered federal contractors (and subcontractors) to require that their workers be fully-vaccinated against COVID-19 by December 8, 2021 (though the deadline was extended to January 18, 2022) –
ENFORCEMENT ON HOLD
- A Centers for Medicare & Medicaid Services (CMS) rule requiring certain healthcare employers to require that their workers be fully-vaccinated against COVID-19 by January 4, 2022. –
CURRENTLY IN EFFECT
Not long after the vaccine mandates were issued, each mandate was subject to legal challenge. These suits have been winding their way through the courts and, two of the three mandates (the OSHA ETS Rule and CMS Mandate) have already reached the U.S. Supreme Court.
The Supreme Court is scheduled to hear oral arguments on Jan. 7, 2022, and the timing of any decision is unknown. Thus, it is important to take stock of the current status of each of the vaccine mandates, so that contractors can assess their next steps.
Click on the blue bars below to get an update on each mandate, its background, its litigation and what contractors an expect next.
OSHA ETS: Vaccination or Testing for Employers with 100+ Employees
On Nov. 5, OSHA issued the ETS Rule requiring large employers (i.e., those with 100+ employees) to develop a COVID-19 vaccination policy ensuring that all employees are vaccinated or submit to weekly COVID-19 testing by January 4, 2022. FCA’s analysis of the OSHA ETS Rule is available here.
Litigation Over the OSHA ETS Rule
On Nov. 12, the Fifth Circuit issued a “stay” preventing OSHA from enforcing the OSHA ETS Rule. In its decision, the Fifth Circuit questioned the constitutional and statutory authority of OSHA to issue the ETS Rule. The litigation was then transferred to the Sixth Circuit.
On Dec. 17, the Sixth Circuit issued an order “lifting” the stay and allowing OSHA to enforce the ETS Rule.
OSHA Announces “Restart” to Enforcement of OSHA ETS Rule
On Dec. 18, OSHA responded to the Sixth Circuit’s decision by immediately announcing that it would begin enforcing the OSHA ETS Rule on January 10, 2022.
However, with respect to the vaccination or weekly COVID-19 testing portion of the OSHA ETS Rule, OSHA announced that it “will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”
OSHA’s announcement is available here.
U.S. Supreme Court Grants Review and Temporarily Blocks Rule Review
On Jan. 13, the Supreme Court ruled 6-3 to temporarily block enforcement of the OSHA ETS. This came about a week after they heard oral arguments regarding the rule on Jan. 6.
The Supreme Court temporarily blocked the OSHA ETS rule from being enforced while the legal challenges against it play out in the courts.
It is also important to remember that, regardless of how the Court rules, customers and general contractors may implement their own vaccine mandates. What is more, local jurisdictions are eyeing their own vaccine mandates. For example, New York City recently announced that, by December 27, private sector employees in the city will need to show proof of receiving at least one dose of a COVID-19 vaccine to work on the employer’s premises.
Federal Contractors: “Hard” Vaccine Mandate for Covered Federal Contractors (and Subcontractors)
On Sept. 9, President Biden issued Executive Order 14042, which required covered federal contractors (and subcontractors) to comply with the Safer Federal Workforce Task Force’s Guidance for Federal Contractors and Subcontractors (“Task Force Guidance”). Under the Task Force Guidance, covered contractors and subcontractors were initially required to have employees “fully vaccinated” by December 8, 2021, but the deadline was extended to January 18, 2022. FCA’s analysis of the federal contract mandate is available here.
Litigation over the Federal Contractor Mandate
On Dec. 7, a federal district court in Georgia issued a nationwide injunction blocking the federal government from enforcing its COVID-19 vaccine mandate for federal contractors (and subcontractors).
Shortly after the Georgia decision, the federal government announced that it would not enforce Executive Order 14042 or the vaccine mandate for federal contractors (and subcontractors):
For existing contracts or contract-like instruments (hereinafter “contracts”) that contain a clause implementing requirements of Executive Order 14042: The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order (hereinafter, “Excluded State or Outlying Area”). . . .
The federal government did note, however, that it would continue to apply its COVID-19 standards in all federal buildings:
Federal agency COVID-19 workplace safety protocols for Federal buildings and federally controlled facilities still apply in all locations. Contractor employees working onsite in those buildings and facilities must still follow Federal agency workplace safety protocols when working onsite.
The announcement is available here.
On Dec. 9, the federal government appealed the Georgia court’s decision to the Eleventh Circuit.
On Dec. 17, the Eleventh Circuit denied the government’s request to lift the nationwide injunction. The Eleventh Circuit did, however, allow for expedited briefing, which means that briefing on the issue will be completed by Jan. 24, 2022. As a result, a decision from the Eleventh Circuit is not likely until February and, by then, the court may have guidance from the Supreme Court on the other vaccine mandates.
For now, Executive Order 14042 and the federal contractor (and subcontractor) vaccine mandate is “on hold.” Thus, covered contractors are not required to take any affirmative steps toward compliance.
CMS: “Hard” Vaccine Mandate for Healthcare Workers
On November 4, the Centers for Medicare & Medicaid Services (CMS) issued an Interim Final Rule with Comment Period (CMS Mandate) requiring all healthcare workers in CMS-regulated settings to be fully vaccinated against COVID-19 by Jan. 4, 2022.
Litigation Over CMS Mandate
On November 30, a federal district court in Louisiana issued a nationwide injunction against CMS enforcing its COVID-19 vaccine mandate.
On Dec. 2, CMS announced that it would suspend enforcement of the CMS Mandate.
On Dec. 15, a federal appeals court issued a decision lifting the nationwide injunction in the 25 states that did not affirmatively challenge the CMS vaccine mandate. As a result, CMS is barred from enforcing its vaccine mandate against healthcare employers in the following 25 states, including: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming. CMS is not barred from enforcing its mandate in the other 25 states.
On Dec. 22, the U.S. Supreme Court issued an order announcing that it would hear oral arguments regarding the CMS rule at 10 AM ET on January 7.
CMS Announces “Restart” of Enforcement
On Dec. 28, CMS announced that it was restarting enforcement of the CMS rule in the 25 states where the injunction was lifted: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington and Wisconsin.
To give healthcare employers in these states additional time to comply, CMS announced that it would begin enforcing its mandate in two “Phases”: the deadline for “Phase 1” implementation is Jan. 27 and the deadline for “Phase 2” implementation is Feb. 28.
The Supreme Court will have the final say on whether the CMS Mandate is valid. While the CMS mandate does not apply to non-healthcare employers, such as FCA contractors, it is possible that CMS-governed facilities may seek to require contractors to comply with the CMS mandate while performing work at a hospital and clinic.
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