By Dee Anna D. Hays
On September 9, 2021, the Biden administration announced a new plan to combat the ongoing coronavirus pandemic in the United States. A critical component of that plan called on the U.S. Occupational Safety and Health Administration (OSHA) to develop and implement a new emergency temporary standard (ETS) to obligate employers with more than 100 employees to mandate their employees be fully vaccinated or subject to COVID-19 testing at least once per week. Further, President Biden signed two Executive Orders mandating that all federal executive branch workers be vaccinated and extending the requirement to employees of contractors that do business with the federal government. The plan also directed the Centers for Medicare & Medicaid Services (CMS) to mandate COVID-19 vaccinations for workers in most health care settings that receive Medicare or Medicaid reimbursement, building on the prior vaccination requirement for nursing facilities.
Legal challenges to each of the three federal mandates are now pending in multiple federal courts. To complicate the issues further, largely in response to the federal mandates, several states have issued executive orders or passed legislation that seek to prohibit employers from mandating vaccines or expand the grounds upon which employees may seek exemptions from a vaccine requirement. The patchwork of vaccine-related laws has left many employers wondering which mandates apply, the status of the various legal challenges, and how to best comply.
- The OSHA ETS
OSHA’s ETS, published in the Federal Register on November 5, 2021, requires employers with 100 or more employees to ensure that their covered employees are either fully vaccinated, or subject to COVID-19 testing at least once per week (and wearing face coverings). Most of its requirements go into effect on December 6, 2021. Among other requirements, employers must have a written plan, log employees’ vaccination status and keep related records, provide paid time off for getting vaccinated and related recovery, and communicate certain information to employees.
Employees must be fully vaccinated on or before January 4, 2022. If employers decide to permit testing for unvaccinated workers, the requirement to test begins on that same day. For employers subject to the ETS, where the employer operates and how the employer structures its policy may affect issues such as the extent to which employees may seek vaccine accommodations and who must pay for weekly COVID tests for unvaccinated employees.
The ETS generally applies to employers under federal OSHA’s jurisdiction with a total of 100 or more employees at any time the ETS is in effect. In states with OSHA-approved State Plans, the ETS does not apply unless and until adopted by the state agency. Employers in these jurisdictions might want to monitor whether and to what extent the state agencies adopt the ETS or issue alternative standards. Further, the ETS does not apply to workplaces covered by the federal contractor or healthcare mandates or the OSHA healthcare ETS issued on June 21, 2021. In addition, the ETS requirements do not apply to employees reporting to a workplace where no other individuals are present, employees working from home, or employees who work exclusively outdoors as outlined in the standard.
On September 16, 2021, the Attorneys General of 24 states sent a letter to President Biden challenging the legality of the ETS. Less than three months later, on November 6, 2021, a panel of the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the ETS, and OSHA itself has suspended its implementation and enforcement. Other challenges have been filed in all of the federal judicial circuits. The consolidated challenges are now pending before the U.S. Court of Appeals for the Sixth Circuit following a random selection of that court by the Judicial Panel on Multidistrict Litigation on November 16, 2021. The Sixth Circuit has jurisdiction over federal appeals for Kentucky, Missouri, Ohio, and Tennessee.
Will the stay become permanent? On the one hand, plaintiffs make valid points about the current situation and the high burden OSHA must meet to prove “grave danger.” On the other hand, courts typically defer to OSHA in terms of defining the hazard and the best ways to mitigate it. Further, the majority of judges for the Sixth Circuit are conservative. Democratic former presidents Bill Clinton and Barack Obama appointed five of the Sixth Circuit’s active judges and Republican former presidents George W. Bush and Donald Trump appointed the remaining eleven judges.
Regardless of the stay, the ETS can only remain in effect for six months, or until May 5, 2022. Pursuant to the OSH Act, the ETS automatically becomes the proposal for a permanent standard. If no permanent standard is enacted before May 5, 2022, the ETS expires. Comments on whether the ETS should become a permanent standard are due on December 5, 2021.
- Executive Order 14042
On September 9, 2021, President Biden issued Executive Order (EO) 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. The EO directs the inclusion of a clause into some government contracts requiring certain contractor and subcontractors to comply with COVID-19 guidance published by the Safer Federal Workforce Task Force. On September 24, 2021, the Task Force published its Guidance for Federal Contractors and Subcontractors (the “Guidance”), which requires covered contractors to, among other things, “ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation” due to a disability or sincerely held religious belief. On November 10, 2021, the Task Force updated the Guidance to clarify that covered contractor employees must be fully vaccinated no later than January 18, 2022. There is no testing opt-out.
In general, the EO covers only new service contracts and contract-like instruments with executive agencies and departments valued at more than $250,000, such as contracts covered by the Service Contract Act, the Davis-Bacon Act, contracts in connection with federal property or land, contracts related to services for federal employees, dependents, or the general public, and construction contracts. According to the Guidance, the federal contractor vaccine mandate applies to “any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace.” Thus, anyone working on the covered contract is subject to the mandate, and anyone who works in a workplace with any employee working on the covered contract is likely subject to the mandate. There are recordkeeping requirements associated with the EO as well along with mandatory face coverings and social distancing for some workers.
The Guidance states that the federal requirements “supersede any contrary State or local law or ordinance.” And, although some states have filed suit to challenge the Executive Order, no stay has yet been entered.
- The CMS Rule
Effective November 5, 2021, the CMS issued its own emergency regulations requiring certain healthcare facilities that participate in the Medicare and Medicaid reimbursement programs (without regard to the number of employees they have) to ensure all employees are fully-vaccinated by January 4, 2022. There is no weekly testing option, although medical and religious exemptions from vaccination must be granted if (and only if) required by federal law, i.e., the ADA and Title VII of the Civil Rights Act, and employers must track vaccination status. The CMS vaccination mandate takes priority over all other federal vaccination mandates, including the ETS for Healthcare Employers, the federal government contractor requirements, and the ETS. Moreover, the scope of the rule is broad, covering employees, students, trainees, volunteers, and independent contractors.
The preamble to the CMS rule and CMS guidance expressly claim preemption over any state law that contradicts, or frustrates the purpose of, these regulations pursuant to the Supremacy Clause of the U.S. Constitution. Notwithstanding, several states have filed legal challenges to the CMS rule. For example, on November 17, 2021, Florida’s Attorney General filed suit in the United States District Court for the Northern District of Florida, requesting a preliminary injunction be entered prior to December 6, 2021. On November 20, 2021, the Court entered an order declining to grant the preliminary injunction; however, further challenges are expected.
- What Should Employers Expect Next?
COVID-19 vaccination policies are shaped by a number of competing legal requirements and practical considerations, including collective bargaining agreements, the ETS, Executive Order 14042, the CMS mandate, and the rise of various state initiatives designed to restrict or prohibit mandatory vaccine programs, each with corresponding issues including coverage, requirements, options, payment for tests and the time spent testing. Employers subject to federal mandates but operating in jurisdictions with state or local vaccine mandate restrictions must decide whether to comply with state restrictions or disregard the state restrictions on untested arguments such as preemption by federal law. This is a particularly difficult conundrum for employers who risk losing substantial revenue from federal contracts or the ability to participate in Medicare and Medicaid reimbursement programs.
In addition, employers that mandate vaccines for all or some employees might want to consider establishing a robust process for receiving and handling employee accommodation requests. Under federal law, employers will need to process disability-based requests in accordance with the ADA and religious-based requests in accordance with Title VII. There may also be expanded state law requirements for exemptions. Employers should also consider how to address confidentiality concerns in requesting and storing information regarding vaccination status and copies of vaccination records. Finally, employers should watch for further federal and state law developments in this rapidly evolving area of law.
Dee Anna serves as the Legislative Director for HR Tampa.
Ogletree Deakins Tampa
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www.ogletree.com