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NEWSLINE
COVID-19 Vaccination Mandates: Supreme Court to Hear ABC’s Challenge to OSHA ETS; CMS Mandate Enjoined in 25 States; Federal Contractor Mandate Injunction Upheld
Three different federal COVID-19 vaccination mandates issued under the Biden administration continue to be challenged in the courts. Read the important developments on the federal contractor, Centers for Medicaid and Medicare Services and Occupational Safety and Health Administration vaccination mandates.
OSHA COVID-19 Vaccination and Testing ETS
On Dec. 17, the 6th Circuit Court of Appeals lifted the 5th Circuit’s stay of the U.S. Department of Labor’s OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard, which applies to employers with 100 or more employees. ABC filed an emergency appeal with the Supreme Court on Dec. 20, one of several filed by other groups. The Supreme Court has agreed to hold oral argument on the OSHA ETS on Jan. 7. OSHA has announced a delayed restart of the ETS enforcement until Jan. 10, and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
Because the stay has been lifted, it is recommended that covered employers do the following:
Blueprint. • Plan for the possibility of a
OSHA’s ETS recordkeeping requirements. • See OSHA ETS resources, which include fact sheets and FAQs. • Watch OSHA’s December 2021 webinar (slides) on the ETS. • Prepare for logistical challenges of testing. • Encourage employees to get vaccinated. • See ABC’s COVID-19 vaccination toolkit. • Follow all safety protocols as required by court-approved federal, state and local governments.
With the revised Jan. 10 and Feb. 9 deadlines in view, contractors may want to undertake more concrete compliance actions. Each company’s circumstances may vary. It is anticipated the Supreme Court will rule soon after the Jan. 7 oral argument is held, bringing greater clarity to the situation. CMS COVID-19 Vaccination Mandate for Health Care Staff (and Contractors)
Three different federal COVID-19 who provide any care, treatment, or vaccination mandates issued under other services for the facility. The the Biden administration continue to CMS vaccination mandate is currentbe challenged in the courts. Read the ly enjoined in a number of states but important developments on the not nationwide. The Supreme Court federal contractor, Centers for has agreed to hold oral argument on Medicaid and Medicare Services and the CMS vaccination mandate on Occupational Safety and Health Jan. 7. Administration vaccination mandates. On Dec. 15, the Court of Appeals for the 5th, 8th, and 11th Circuits and OSHA COVID-19 Vaccination and District Court for the Northern Testing ETS District of Texas preliminarily enjoined the CMS vaccination On Dec. 17, the 6th Circuit Court of mandate in the following 25 states: Appeals lifted the 5th Circuit’s stay Alabama, Alaska, Arizona, Arkansas, of the U.S. Department of Labor’s Georgia, Idaho, Indiana, Iowa, OSHA COVID-19 Vaccination and Kansas, Kentucky, Louisiana, MissisTesting Emergency Temporary sippi, Missouri, Montana, Nebraska, Standard, which applies to employ- New Hampshire, North Dakota, Ohio, ers with 100 or more employees. Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia ABC filed an emergency appeal with and Wyoming. Medicare and Medicthe Supreme Court on Dec. 20, one of aid-certified providers and suppliers several filed by other groups. The in those states are not required to Supreme Court has agreed to hold comply with the Interim Final Rule, oral argument on the OSHA ETS on and surveyors will not investigate Jan. 7. compliance with the rule in facilities located in those states, pending OSHA has announced a delayed future developments in the litigation. restart of the ETS enforcement until Jan. 10, and will not issue citations According to the CMS FAQs, “In the for noncompliance with the stan- other 25 states, the District of dard’s testing requirements before Columbia, and the territories, as an Feb. 9, “so long as an employer is exercise of enforcement discretion, exercising reasonable, good faith the rule will be implemented and efforts to come into compliance with enforced on the following modified the standard.” timeline: the deadline for Phase 1 implementation is January 27 and Because the stay has been lifted, it is the deadline for Phase 2 implementarecommended that covered employ- tion is February 28.”
ers do the following:
Refer to the Dec. 28 updated CMS • Continue to monitor legal develop- FAQS for further details. ments in Newsline and the Beltway
Blueprint. • Plan for the possibility of a COVID-19 vaccination and testing mandate. • Review your vaccination and testing policies. If you currently don’t have policies, consider adopting them. Policy templates are available on the OSHA Vaccination and Testing ETS website. • Collect employees’ vaccination status and prepare to comply with OSHA’s ETS recordkeeping requirements. • See OSHA ETS resources, which include fact sheets and FAQs. • Watch OSHA’s December 2021 webinar (slides) on the ETS. • Prepare for logistical challenges of testing. • Encourage employees to get vaccinated. • See ABC’s COVID-19 vaccination toolkit. • Follow all safety protocols as required by court-approved federal, state and local governments.
With the revised Jan. 10 and Feb. 9 deadlines in view, contractors may want to undertake more concrete compliance actions. Each company’s circumstances may vary. It is anticipated the Supreme Court will rule soon after the Jan. 7 oral argument is held, bringing greater clarity to the situation. CMS COVID-19 Vaccination Mandate for Health Care Staff (and Contractors)
The CMS vaccination mandate applies to a wide range of people working at health care facilities, including employees, trainees, students, volunteers or contractors who provide any care, treatment, or other services for the facility. The CMS vaccination mandate is currently enjoined in a number of states but not nationwide. The Supreme Court has agreed to hold oral argument on the CMS vaccination mandate on Jan. 7. On Dec. 15, the Court of Appeals for the 5th, 8th, and 11th Circuits and District Court for the Northern District of Texas preliminarily enjoined the CMS vaccination mandate in the following 25 states: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming. Medicare and Medicaid-certified providers and suppliers in those states are not required to comply with the Interim Final Rule, and surveyors will not investigate compliance with the rule in facilities located in those states, pending future developments in the litigation. According to the CMS FAQs, “In the other 25 states, the District of Columbia, and the territories, as an exercise of enforcement discretion, the rule will be implemented and enforced on the following modified timeline: the deadline for Phase 1 implementation is January 27 and the deadline for Phase 2 implementation is February 28.” Refer to the Dec. 28 updated CMS FAQS for further details.
Federal Contractor COVID-19 Vaccination Mandate
On Dec. 17, the 11th Circuit kept in place the Georgia court’s nationwide injunction against the federal contractor vaccination mandate. The appeals court has set an oral argument for April, but, for now, the federal contractor mandate remains blocked. On Dec. 7, a Georgia federal judge granted ABC’s motion to intervene and issued a nationwide preliminary injunction order against the federal contractor COVID-19 vaccination mandate. Judge Baker’s decision makes it clear that ABC’s participation in the case was essential to getting nationwide relief, which would otherwise have been limited to the states who sued. This was a big win for ABC, the only private business group that joined the states in suing over this mandate. Read ABC’s press release.
Federal Contractor COVID-19 Vacci- On Nov. 30, the Kentucky district nation Mandate court preliminarily enjoined the federal contractor vaccination On Dec. 17, the 11th Circuit kept in mandate, but only for three place the Georgia court’s nationwide states—Kentucky, Ohio and Tennesinjunction against the federal see. This injunction was upheld by contractor vaccination mandate. The the appeals court for the 6th Circuit appeals court has set an oral argu- on Jan. 5, again rejecting the Biden ment for April, but, for now, the administration’s efforts to implement federal contractor mandate remains the vaccination mandate without blocked. delay. On Dec. 7, a Georgia federal judge As a result of the legal challenges granted ABC’s motion to intervene against the federal contractor and issued a nationwide preliminary COVID-19 vaccination mandate, the injunction order against the federal Safer Federal Workforce Taskforce, contractor COVID-19 vaccination which provides the guidance implemandate. Judge Baker’s decision menting the federal contractor makes it clear that ABC’s participa- vaccination mandate, provided an tion in the case was essential to update on Dec. 9, indicating it would getting nationwide relief, which take no action to enforce the requirewould otherwise have been limited to ments of Executive Order 14042 the states who sued. This was a big pending the outcome of appeals. win for ABC, the only private business group that joined the states ABC members should continue to in suing over this mandate. Read monitor these developments in ABC’s press release. Newsline and the Beltway Blueprint.
On Nov. 30, the Kentucky district court preliminarily enjoined the federal contractor vaccination mandate, but only for three states—Kentucky, Ohio and Tennessee. This injunction was upheld by the appeals court for the 6th Circuit on Jan. 5, again rejecting the Biden administration’s efforts to implement the vaccination mandate without delay. As a result of the legal challenges against the federal contractor COVID-19 vaccination mandate, the Safer Federal Workforce Taskforce, which provides the guidance implementing the federal contractor vaccination mandate, provided an update on Dec. 9, indicating it would take no action to enforce the requirements of Executive Order 14042 pending the outcome of appeals. ABC members should continue to monitor these developments in Newsline and the Beltway Blueprint.
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NEWSLINE
NDAA Passes Without Harmful Labor Provisions
On Dec. 15, the House and Senate passed the annual National Defense Authorization Act, following negotiations to ensure passage of the bill before the end of the year. Notably, the NDAA agreement removed several harmful labor provisions opposed by ABC from the previous version of the bill passed only in the House. The provisions addressing debarment procedures for federal contractors, apprenticeship requirements and local hire mandates were stripped from the bill in an agreement between the two chambers. ABC is pleased that the newly agreed text excludes these provisions, as it previously expressed concerns with the House-passed version of the bill in October and sent a letter with a coalition of construction and small business associations to Congress.
