Legal challenges leave employers with multiple changes to consider, often depending on the sector they’re in.
In late 2021, President Biden announced a series of sweeping vaccine mandates as part of his administration’s plan to combat the COVID-19 pandemic. Among the most-far reaching mandates were the Occupational Safety and Health Administration Emergency Temporary Standard, the Centers for Medicare and Medicaid Interim Final Rule, and the federal contractor vaccine mandate. Since announced, these mandates have received tremendous pushback at the state level, leaving many employers in the dark about how to comply.
The OSHA Emergency Temporary Standard. The ETS requires all private employers with at least 100 employees to have a fully vaccinated work force, or, in the alternative, require unvaccinated employees to wear a mask and produce a negative COVID-19 test on a weekly basis. On Jan. 13, 2022, the Supreme Court blocked enforcement of the ETS throughout the United States. Shortly thereafter, OSHA withdrew the ETS and all related guidance. However, OSHA left open the possibility that it may create a permanent rule for vaccination and testing.
The CMS Interim Final Rule. The IFR requires a multitude of health-care providers participating in Medicare or Medicaid, including hospitals, long-term care facilities, and nursing homes, to ensure they have a fully vaccinated work force. Despite facing a barrage of legal challenges, the IFR is still enforceable in all 50 states and the District of Columbia. However, on Nov. 17 of this year, 22 states (including Kansas and Missouri) petitioned CMS to repeal the rule and all related guidance. Accordingly, health-care providers should continue complying with the IFR while monitoring how CMS responds to this latest challenge.
The Federal Contractor Vaccine Mandate. The mandate requires the inclusion of a clause in certain contracts with the federal government requiring, among other things, that all contractors, subcontractors, and their employees be fully vaccinated. In December 2021, the District Court for the Southern District of Georgia issued a nationwide injunction staying enforcement of the Contractor Mandate. Although the 11th Circuit narrowed the scope of the injunction to only a handful of states in August 2022, the Office of Management and Budget recently suspended nationwide enforcement of the Contractor Mandate until further notice.
State Measures. States have enacted their own legislation geared toward chipping away at the mandates outlined above. For instance, both Kansas and Missouri banned requiring proof of vaccination status to enter public buildings, use public transportation, or use other public accommodations. Moreover, Kansas House Bill 2001 provides that if an employer imposes a vaccination policy, the employer must also provide exemptions for medical reasons and religious beliefs. Importantly, the employer cannot inquire into the sincerity of the religious belief. Since the bill went into effect in November 2021, there have been approximately 350 violations reported to the Kansas Department of Labor. Of these reported violations, investigators determined that only 2.8 percent were actual instances of the employer breaking the law. This low figure demonstrates House Bill 2001 served its purpose in ensuring employees have a means of opting out of the vaccine if they so choose, and other states may follow Kansas’ lead when state legislatures reconvene in 2023.
Looking Forward. Outside of the health-care industry, where companies are largely required to mandate vaccination of staff, employers appear to be less adamant in requiring COVID-19 vaccination than they were earlier in the pandemic, given some of the resistance from state legislatures (e.g., Kansas) and the legal challenges to federal mandates. Furthermore, with employers facing ever-increasing recruitment and retention challenges in a tight labor market, the possibility of wider vaccination mandates in the employment context seems unlikely.
To the extent employers do implement mandatory vaccination, they should be cognizant of state and federal anti-discrimination laws, particularly in the context of employee requests for exemptions on religious or medical exemption grounds, and should ensure internal policies and exemption forms are created or updated. Employers should continue to monitor future federal and state legal developments and consult legal counsel when exemption or other issues arise.