Comprehensive Update on The Status of Employee COVID-19 Vaccine Mandates
WITHDRAWN: OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard
On January 13, 2022, in National Federation of Independent Business, et. al. v. Department of Labor, Occupational Safety and Health Administration, et. al., the U.S. Supreme Court, in a 6-3 opinion, stayed the enforcement of the Occupational Safety and Health Administration (OSHA)’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). Considering the U.S. Supreme Court’s ruling, OSHA withdrew the ETS effective January 26, 2022, thereby ending this litigation. OSHA has announced that it intends to move forward with the permanent rulemaking process to develop a COVID-19 workplace standard. While the ETS may serve as a starting point for OSHA’s proposed permanent rule, OSHA is expected to make changes to narrow its scope in accordance with the Supreme Court’s decision.
Employers with 100 or more employees may stop implementation and enforcement of their own mandatory vaccination or “vaccination or test” policies that were created to comply with OSHA’s ETS, but should continue to ensure their workplace safety protocols meet an employer’s general duty to protect workers from recognized hazards. Employers who wish to proceed with the rollout of their own mandatory vaccination or “vaccination or test” policies may do so, subject to state and local law limitations or bans on private employer COVID-19 vaccine mandates. Employers should ensure that any workplace policies and protocols (including the decision of whether or not to have a policy) comply with all other applicable workplace safety laws, which could be both general and industry-specific.
PAUSED: Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors Enjoined
On November 30, 2021, in Commonwealth of Kentucky, et. al. v. Joseph R. Biden, et. al., the U.S. District Court of the Eastern District of Tennessee issued a preliminary injunction preventing the enforcement of Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO”) in three states: Kentucky, Ohio, and Tennessee.* The federal government then appealed and also asked the U.S. Circuit Court of Appeals for the 6th Circuit to stay the preliminary injunction during the pendency of the appeal. On January 5, 2022, the 6th Circuit, denied the government’s requested stay. Therefore, the injunction preventing enforcement will remain in place until the case is decided on the merits.
Precedent about the legality of the EO may otherwise be set in State of Georgia, et. al. v. President of the United States, et. al. (“Georgia v. Biden”), which decision will apply nationwide. On December 7, 2021, in Georgia v. Biden, the U.S. District Court for the Southern District of Georgia issued an order temporarily blocking the enforcement, nationwide, of the EO. The federal government appealed this injunction to the U.S. Circuit Court of Appeals for the 11th Circuit and also asked the 11th Circuit to stay the injunction during the pendency of its appeal. On December 17, 2021, the 11th Circuit denied the government’s request for a stay of the injunction. In the court order, the 11th Circuit also expedited the government’s appeal and “set the case for the next available oral argument” before the 11th Circuit; now, tentatively scheduled for the week of April 4, 2022.
In sum, covered federal contractors may pause implementation and enforcement of their own mandatory vaccination policies which were created to comply with the EO. However, federal contractors who wish to proceed with the rollout of their own mandatory vaccination policies may do so, subject to state and local law limitations or bans on private employer COVID-19 vaccine mandates. And, as noted by the Safer Federal Workforce Task Force, “Federal agency COVID-19 workplace safety protocols for Federal buildings and Federally controlled facilities still apply in all locations. Therefore, Contractor employees working onsite in those buildings and facilities must still follow Federal agency workplace safety protocols when working onsite.”
*Similar litigation, each applicable to only a handful of states, is also pending in several other U.S. Court of Appeals circuits.
PAUSED: Executive Order 14043: Requiring Coronavirus Disease 2019 Vaccination for Federal Employees Enjoined
On January 21, 2022, in Feds for Medical Freedom, et. al. v. Joseph R. Biden, Jr. et. al., the U.S. District Court for the Southern Division of Texas granted Feds for Medical Freedom, et. al.’s request for a preliminary injunction preventing the enforcement of Executive Order 14043: Requiring Coronavirus Disease 2019 Vaccination for Federal Employees nationwide, until the case is resolved on the merits. The Safer Federal Workforce Task Force (“Task Force”) has issued an update in response to this nationwide injunction, indicating that while the federal government will take no action to implement or enforce the vaccination requirement, guidance on other federal agency safety protocols based on vaccination status remain in effect, such as masking, physical distancing, travel, testing, and quarantine. On January 24, 2021, the Task Force also issued “Frequently Asked Questions Related to Compliance with the Applicable Preliminary Nationwide Injunction on Implementation and Enforcement of the Vaccination Requirement Pursuant to Executive Order (E.O.) 14043.”
IN FORCE: CMS’s Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule
On January 13, 2022, in Joseph R. Biden, Jr., President of the United States, et. al. v. Missouri and Xavier Becerra, Secretary of Health and Human Services, et. al., v. Louisiana, et. al., the U.S. Supreme Court in a 5-4 opinion, stayed the preliminary injunctions previously issued by U.S. District Courts in each of these cases affecting 24 states. These stays of the preliminary injunctions allows the Center for Medicare and Medicaid Services (CMS) to move forward in enforcement of the Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (the “Rule”), before the cases are decided on the merits. The cases are currently pending before the U.S. Court of Appeals for 8th Circuit and the U.S. Court of Appeals for the 5th Circuit, respectively. The U.S. government also has petitions for a writ of certiorari before the U.S. Supreme Court.
And what about Texas? On January 13th, the only U.S. state not subject to enforcement of the Rule was Texas. This is because on December 15, 2021, the U.S. District Court for the Northern District of Texas (the “District Court”) issued a preliminary order enjoining the enforcement of the Rule in Texas, pending a trial on the merits. On January 19, 2022, the District Court issued an order dismissing, without prejudice, State of Texas, et. al, v. Xavier Becerra, in his official capacity as Secretary of the United States Department of Health, et. al. With this dismissal, Texas became the final state subject to CMS enforcement of the Rule.
Employers affected by the Rule, should ensure compliance in accordance with the Phase 1 and Phase 2 deadlines detailed in the External FAQ: CMS Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule published by CMS.
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