COVID POLICY: Fate of Vaccine Mandates Still Up in the Air

Employers begin 2022 in compliance limbo amid unresolved legal challenges to federal vaccine mandates. As employers struggle over whether to mandate vaccines, it may be weeks, if not months, before final court decisions are issued that will determine whether employers must comply with the OSHA ETS for large employers, the executive order for federal contractors, or the CMS rule for health care providers.

ETS back on: On December 17, the Sixth Circuit reinstated the Emergency Temporary Standard which requires all employers with more than 100 employees to mandate that onsite employees be vaccinated or else provide weekly negative test results. OSHA will require covered employers to comply with all but the testing/vaccination requirements by January 10, and will not issue citations for noncompliance of the testing/vaccination requirements until February 9, as long as an employer is exercising reasonable, good faith efforts to comply.

Federal contractor mandate remains blocked: Executive Order 14042, which requires all federal contractors to ensure that their covered employees are vaccinated, remains subject to a temporary injunction blocking its implementation. The Eleventh Circuit Court of Appeals will determine whether to lift the injunction or permanently invalidate the mandate soon, but its decision will likely be appealed to the Supreme Court, meaning a final decision could be months away.

Health care mandate partially blocked: The CMS rule requiring health care providers that receive Medicare funding to ensure employees are vaccinated is temporarily blocked in 25 states—Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming—but remains in full effect in all other states. The Supreme Court will likely weigh in on whether to permanently block the mandate nationwide.

Meanwhile, various state and local jurisdictions have enacted their own conflicting policies. Florida, Tennessee, and other “red states” have enacted laws inhibiting employers from enforcing vaccine mandates, while “blue” jurisdictions such as New York City have forged ahead with mandates beyond what is required under federal rules. Employers are now tasked with navigating competing policies across different jurisdictions.

Where does this leave employers? The continuing uncertainty requires employers to remain vigilant and flexible. Those subject to the ETS should prepare for compliance by January 10, even though the Supreme Court decision could permanently block the mandate prior to February 9, the testing enforcement date. Employers subject to the mandates for federal contractors and health care providers remain in limbo. More difficult still is determining where this leaves employers subject to two—or all three—of the federal mandates. Employers should consider simply preparing to comply with all relevant mandates until a final decision is given on the fate of each. Finally, employers should ensure they are following any additional or conflicting requirements in state or local jurisdictions.