Health Care Alert: COVID-19 Vaccine Mandates Paused by the Courts for Many

Employers in many industries have been in the process of implementing a number of COVID-19 vaccination policies as required by various federal agencies. There are currently three mandates that may affect employers: 1) OSHA emergency temporary standard (OSHA ETS) affecting employers with >100 employees; 2) Federal contractors (Federal Contractor Mandate); and 3) Centers for Medicare and Medicaid (CMS) mandate affecting facility-based healthcare providers and suppliers (CMS Mandate).

All of these mandates have faced legal challenges where various federal courts have issued orders staying the mandates until the litigation plays out. Below is the current status of each mandate:

1. OSHA ETS. As of November 12, 2021, and prior to the case being transferred to the Sixth Circuit Court of Appeals, the Court of Appeals for the Fifth Circuit granted a motion to stay the OSHA ETS. The next steps in this process involve appeals likely to reach the United States Supreme Court. The OSHA ETS required impacted employers to either implement a mandatory vaccination policy for all employees, subject to limited medical or religious exemptions, or a vaccination policy coupled with weekly testing and mask requirements for those employees who refused to get vaccinated.  Under the OSHA ETS employers have until January 4, 2022 to implement a vaccination policy and until December 5, 2021 to require those employees who refuse to be vaccinated to wear face coverings while at work.  Based on the timelines involved, even if the stay on the OSHA ETS is ultimately lifted, it is highly likely that the deadlines in the ETS will have to be extended. 

2. Federal Contractor Mandate. On November 30, 2021, a Kentucky federal judge granted a preliminary injunction preventing the COVID-19 vaccine mandate requirement for federal contractors from being enforced. This is the first ruling on this mandate and affects only federal contractors in Ohio, Kentucky and Tennessee. Under the original mandate, Executive Order 14042, federal contractors must ensure their workers are vaccinated by December 8, 2021 or have obtained a valid exemption and reasonable accommodation.

3. CMS Mandate. On November 30, 2021, a Louisiana federal judge granted a preliminary injunction for the CMS Mandate for every state not already subject to a prior preliminary injunction (those states are Alaska, Arkansas, Iowa, Kansas, Missouri, New Hampshire, Nebraska, Wyoming, North Dakota, and South Dakota) thereby prohibiting the CMS from enforcing the CMS Mandate for any provider or supplier until further court notice. The pause on this mandate will remain in force unless the decision is reversed by either the Fifth Circuit Court of Appeals or the United States Supreme Court. Under CMS Mandate, by December 6, 2021, employers were to have developed a plan for (1) vaccinating workers, (2) evaluating accommodation requests, and (3) tracking and documenting primary vaccinations, boosters, and accommodation requests.  By the same December 6^th date all covered employees were to have received at least the first dose of a multi-dose COVID-19 vaccine, the Johnson & Johnson vaccine, or must have requested and been granted an accommodation to the vaccine requirement.  By January 4, 2022, all covered employees, except those who had been granted accommodations, were to be fully vaccinated.

Suffice it to say that these mandates are working their way through the judicial system. If one or all of them are ultimately found to be enforceable by the courts, the timelines for compliance most certainly will have to be modified.

Many employers are asking what they should do. Our advice is it depends. Many employers are already far down the path of having implemented a policy and based on their employee responses, are comfortable continuing with those policies. Keep in mind that, except for union and organized labor complexities, most employers could have adopted mandatory vaccination policies without the federal mandates. Some factors employers may consider are their current employee response to any policy or mandate, any flight risk of employees that may create additional workforce shortages, and the overall business impacts to either pausing or relaxing a current policy (i.e., temporary non-enforcement) or continuing with the current policy.

Those employers whose workforce involves any union, labor organization or collective bargaining agreements have additional considerations. In most cases, the COVID-19 vaccine mandates would be a mandatory subject of bargaining and cannot be implemented unilaterally.

Finally, whatever your organization chooses to do, be sure to communicate clearly with your employees the current policies in place and your expectations for compliance so they understand their obligations and their rights. As with any human resources policy, clear communication is critical to avoid confusion and misunderstanding. As the status of these mandates continues to evolve, we will continue to provide you with timely updates.