THE STATUS OF FEDERAL VACCINE MANDATES UNDER PRESIDENT BIDEN’S COVID-19 ACTION PLAN
On
By DEE ANNA D. HAYS
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 vaccinerelated laws has left many employers wondering which mandates apply, the status of the various legal challenges, and how to best comply.
I. 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. 38
www.HRProfessionalsMagazine.com
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
