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OSHA ETS Rule Has Been “Withdrawn” (click to expand)

The OSHA ETS Rule would have required 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 Jan. 4, 2022.

However, the day after it was issued, a federal appeals court issued a “stay” preventing OSHA from enforcing its rule. On Dec. 17, 2021, another federal appeals court lifted the stay and allowed OSHA to move forward with enforcing the OSHA ETS Rule.

Nevertheless, on January 13, the U.S. Supreme Court reimposed the “stay” barring OSHA from enforcing its rule. The Court found that the plaintiffs were “likely to succeed on the merits of their claim that the [OSHA] Secretary lacked authority to impose the mandate.” 

Although the litigation was not entirely settled, on January 26, OSHA announced that it was withdrawing the OSHA ETS Rule. In its announcement, OSHA stated that it “continues to strongly encourage the vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.” 

Federal Contractor Mandate Remains “On Hold” Pending Appeal (click to expand)

On Sept. 9, 2021, 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 Dec. 8, 2021, but the deadline was extended to Jan. 18, 2022.

On Dec. 7, 2021 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) as set forth in Executive Order 14042 and the Task Force Guidance. Shortly after the Georgia decision, the government announced that it would not enforce Executive Order 14042 or the vaccine mandate for federal contractors (and subcontractors).

On Dec. 17, 2021 a federal appeals court rejected the government’s attempt to have the injunction lifted. Thus, the Federal Contractor Mandate remains “on hold” pending a decision from the appellate court. Even then, it is likely that any decision will be appealed to the Supreme Court for a final decision. 

CMS Mandate for Healthcare Workers is Moving Forward (click to expand)

The CMS Mandate requires all healthcare workers in CMS-regulated settings to be fully vaccinated against COVID-19 by Jan. 4, 2022. Initially, a federal district court issued a nationwide injunction preventing CMS from enforcing its mandate. However, on appeal, the injunction was limited to 25 states.

On Jan. 13, the U.S. Supreme Court removed the injunction preventing CMS from enforcing its vaccine mandate against healthcare employers in 25 states. Thus, CMS is now permitted to move forward with its vaccine mandate in all 50 states.

CMS announced that its vaccine mandate will be implemented in two phases, depending on whether the healthcare provider was in a state where the injunction was only recently lifted.

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 In the interim, we will continue to provide updates as the situation develops.