In 2021, President Biden announced three vaccine mandates for private-sector workers:
- (1) OSHA’s Emergency Temporary Standard relating to COVID-19 Vaccination and Testing, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (“OSHA ETS Rule”), which would have required employers with 100+ employees to either be vaccinated or submit to weekly COVID-19 testing;
- (2) Executive Order 14042, which would require federal contractors (and subcontractors) to mandate that their workers be fully-vaccinated against COVID-19 (“Federal Contractor Mandate”); and
- (3) CMS’s rule requiring certain healthcare employers to mandate that their staff be fully-vaccinated against COVID-19, 86 Fed. Reg. 61,555 (Nov. 5, 2021) (“CMS Mandate”).
However, as of Jan. 26, only the CMS Mandate is moving forward. The CMS Mandate, though, applies only to covered healthcare employers and not construction contractors.
As outlined in detail below, OSHA officially scrapped the OSHA ETS Rule, effective January 26, and the Federal Contractor Mandate has been “stayed” nationwide while it continues to wind its way through the courts.
OSHA ETS Rule Has Been “Withdrawn” (click to expand)
Federal Contractor Mandate Remains “On Hold” Pending Appeal (click to expand)
CMS Mandate for Healthcare Workers is Moving Forward (click to expand)
Summary and Bottom Line
OSHA ETS Rule = Scrapped
The OSHA ETS Rule is officially kaput. Thus, contractors with 100+ employees no longer need to worry about complying with it. However, it is possible that OSHA will continue to pursue workplace standards related to COVID-19, the rules will likely be focused on specific industries, such as healthcare and meat processing.
OSHA has also suggested that it may utilize its enforcement authority under the General Duty Clause, which is a “catch-all” provision of the Occupational Safety and Health Act that requires employers to maintain a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.
Contractors should also remember that state and local authorities may also promulgate restrictive workplace safety standards relating to COVID-19. For example, California OSHA issued its own ETS standard, which remains in effect for California contractors through April 14, 2022.
Federal Contractor Mandate = “On Hold,” But Still in Litigation
At present, contractors with federal contracts (or subcontracts) are not subject to Executive Order 14042 and the federal contractor (and subcontractor) COVID-19 vaccine mandate. However, a decision is expected fairly soon from the federal appeals court. That said, the U.S Supreme Court will likely have the final say on whether the Federal Contractor Mandate may be enforced against covered contractors.
CMS Mandate = Applies to Healthcare Employers Only
The U.S. Supreme Court allowed CMS to move forward with its vaccine mandate. As a result, covered healthcare employers will need to ensure that all of their staff is vaccinated against COVID-19 in accordance with the deadlines set forth in the rules.
The CMS Mandate generally does not apply to non-healthcare workers. However, it may cause hospitals, clinics and other covered entities to mandate that all onsite guests and workers, including construction contractors, are fully-vaccinated against COVID-19. Such a requirement is not unlike other customer- and general contractor mandates that contractors have experienced during the pandemic.
If you have questions regarding any of the vaccinate mandates please contact us at (866) 322-3477 or by email at firstname.lastname@example.org. In the interim, we will continue to provide updates as the situation develops.