And then there was one…
Just a few weeks ago, three federally issued COVID-19 vaccination mandates were in play: (1) the Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS) mandate ( OSHA) or the weekly test mandate that would have applied to large employers with 100 or more employees; (2) the Centers for Medicare & Medicaid Services (CMS) vaccination mandate which requires personnel of health care providers and CMS-funded providers to be fully vaccinated with no testing option; and (3) the Federal Contractors and Subcontractors Mandate which would require certain contractors and subcontractors who do business with the federal government to implement workplace safety measures related to COVID-19, including a vaccination mandate without the option of testing and masking, social distancing and “designation of a person to coordinate COVID-19 safety protocols in covered workplaces”. All three mandates provide that an employee may be entitled to accommodation for a disability, medical condition, or sincere religious belief under the ADA and Title VII.
At the time of writing this newsletter, only the CMS mandate is currently enforceable. The U.S. Supreme Court allowed the CMS Vaccine Mandate to take effect because the court held that CMS had broad powers to condition vendors and vendors participating in CMS programs on such requirements as CMS deems necessary in the interest of the health and safety of the people who are provided services under the programs. The court’s decision relied heavily on CMS’s specific statutory authority to regulate the safe and effective delivery of healthcare.
So what happened to the others?
We’ll spare you a painful recitation of all the various lawsuits filed challenging the mandate of OSHA ETS and the federal contractor/subcontractor and simply review some of the most recent developments in the ongoing litigation.
For starters, you may have heard that on January 13, 2022, the Supreme Court, in a 6-3 majority decision, issued an opinion placing the ETS on hold indefinitely pending further review by the United States Court of Appeals for the Sixth Circuit (which had restored the mandate to vaccinate or test).
Although the Supreme Court recognized that OSHA has the authority under the Occupational Hazards and Safety Act to establish safety standards for the workplace, the court found that COVID-19 is a hazard that occurs in many workplaces, but is not an occupational hazard in most because it spreads to several other places where people congregate outside of OSHA’s jurisdiction. The court said allowing the ETS to go into effect would allow OSHA to regulate the vagaries of everyday life and significantly expand OSHA’s regulatory authority without clear authorization from Congress. The court went on to say that the ETS is not narrowly designed to address specific workplaces or industries where COVID-19 poses a particular hazard due to the particular work that would be clearly permitted, and therefore this fact also indicates a general public health measure (outside OSHA’s jurisdiction) rather than a specific occupational health or safety standard (under OSHA’s jurisdiction).
Although the Sixth Circuit Court of Appeals would have been tasked with reviewing the legality of the ETS on the merits based on a more comprehensive review, and could have technically reinstated the ETS, on January 25, 2022, the ‘OSHA has announced that it has decided to withdraw the ETS. vaccination and ETS screening. However, the administration noted that despite the retirement of the ETS as an enforceable standard, it still serves as a proposed rule that could be revised as it progresses through the standard rulemaking process. As we noted above, the Supreme Court left open the possibility that the administration could enact stricter regulations for specific jobs or industries where the virus poses a particular danger due to the special characteristics of the virus. job or workplace.
Mandate of the federal contractor
In September 2021, President Biden issued Executive Order 14042 directing federal agencies to contractually require certain contractors and subcontractors doing business with these agencies to implement vaccine mandates without alternative testing and other protocols, including masking, social distancing and designating someone to coordinate COVID -19 safety protocols at covered workplaces. Because the track was so short, many federal contractors and subcontractors immediately began implementing the protocols required to retain federal contracts.
Then, in December 2021, several federal district courts issued preliminary injunctions blocking the federal contractor’s mandate for reasons somewhat different from the arguments raised against OSHA ETS, including that the federal vaccine mandate violates the state sovereignty by prohibiting states from exercising their police power to establish laws. regarding workplace vaccination policies, and that the vaccination mandate is inconsistent with federal procurement laws and the Administrative Procedures Act. As a result of injunctions issued by federal courts in Kentucky, Georgia, Louisiana, Missouri, Florida and Texas, the federal contractor warrant is currently being imposed nationwide. The federal government appealed these rulings to the Fifth, Sixth, Eighth, and Eleventh Circuits. At this time, it appears that the appeals will not be decided until the spring of 2022. So at this time, the government cannot enforce the federal contractor’s mandate, but private parties can contract with each other and agree to voluntarily comply with the provisions of the proposed rule and in such event, this agreement would be enforceable so long as the applicable state and/or local jurisdiction does not prohibit warrants.
With all these moving parts, what should a reasonable employer do?
If your head is spinning and wondering how you will keep your workplace safe, retain your workforce, and comply with your ultimate legal responsibilities, you are not alone. Many employers wonder what’s next and how can they get ahead and still keep workers reasonably happy. While you may have been relieved to learn that OSHA ETS and federal contractor warrants are respectively suspended and prohibited, we do not recommend abandoning all efforts to mitigate the spread of COVID-19 on your workplace. In fact, we recommend that you continue to monitor developments and updates to guidance issued by OSHA and CDC so that you can keep your plan to mitigate and prevent the spread of COVID-19 up to date. your workplace; and if you do not already have such a written plan in place, we recommend that you prepare one. OHSA Protect workers is a good starting point to determine what is still expected of you in your response to COVID-19 despite the status of vaccination mandates.
If you have already prepared for compliance and implemented a vaccination or testing policy, you may choose to proceed with your plan to require vaccinations with any necessary exemptions or testing and simply allow employees more time to come into compliance. Many employers have been successful in encouraging voluntary compliance through education and, in some cases, reasonable incentives. As additional encouragement, we also recommend that you consider giving workers paid time off for the time it takes to get vaccinated or recover from side effects.
If, on the other hand, you choose to suspend the implementation of a vaccination policy or withdraw a policy that had already been implemented, we strongly recommend that you nevertheless continue to require employees to stay at home when they are sick, tracking exposures and transmissions of the virus occurring in the office, and requiring masking and social distancing where employees are congregated indoors. Whether you need vaccinations or encourage and incentivize them, you need to have concise and clear guidelines for when and to whom your workers should report illness or exposure and how long they should quarantine or stay away. the House. The CDC recently updated its guidance on these issues, which we blogged about hereand following this advice along with the recommendations outlined here will help you fulfill your obligation under OSHA’s General Duty Clause to keep your workplace free from known hazards that cause or are likely to cause death or serious physical damage.
Finally, we recommend that you review state and local laws where you do business or have employees to determine if there are state or local mandates in place that require employee vaccinations, weekly testing, or mask-wearing at all times. inside. You are free to adopt the COVID-19 policies as you see fit, provided your policies comply with state and local restrictions. As of the date of this bulletin, Montana and Tennessee both prohibit vaccination mandates, and Alabama, Arkansas, Florida, Iowa, Kansas, North Dakota, Texas, Utah and West Virginia require exemptions, some beyond the exemptions for disabilities, medical conditions and sincere religious beliefs. For example, Texas allows exemptions based on “any reason of personal conscience, based on religious belief, or for medical reasons, including prior recovery from COVID-19.” Check with your employment attorney for the specific regulations that apply to the jurisdictions where you have employees and/or do business.
Unfortunately, COVID-19 is not going away in the immediate future, so you should always take proactive steps to protect your workforce and keep your business running.