There’s been a flurry of activity in federal courts the past few weeks regarding the various federal vaccine mandates with new developments arising daily. States are increasing efforts to block mandates or expand exemptions for employees. Read below for a discussion of where each federal vaccine mandate currently stands and what steps states are taking.
Federal vaccine mandates statuses
- OSHA ETS: Stayed nationwide
- CMS vaccine mandate: Stayed nationwide
- Federal contractor mandate: Stayed in Kentucky, Ohio and Tennessee
What is the future of federal vaccine mandates?
It doesn’t look terribly bright at this point. While it’s been nearly three months since President Biden announced his administration’s “Path Out of the Pandemic” plan (which uses private employers as the tool to increase the vaccination rate of Americans), the roller-coaster ride for employers impacted by these mandates continues.
The day after the Department of Labor published the Emergency Temporary Standard (ETS) in the federal register, the Fifth Circuit Court of Appeals granted an emergency motion to stay the enforcement of the ETS nationwide. A week later, the Fifth Circuit reaffirmed the preliminary stay. As previously reported in this alert, OSHA has acknowledged this stay and suspended activities related to the implementation and enforcement of the ETS.
The suit in the Fifth Circuit was not the only legal challenge to the ETS. Rather, a multitude of legal challenges to the ETS were filed in federal circuit courts of appeal across the country. This resulted in a “lottery” process through which a single circuit court was selected to hear the challenges. The Sixth Circuit was the “winner.” Now, all the pending cases are consolidated for this Circuit’s review.
Employers impacted by the ETS are left wondering what to do. At this time, there are several motions pending in the case. OSHA filed an emergency motion to revoke the stay. This motion will be fully briefed on Friday, Dec. 10. There are also several motions filed by interested parties to have the case heard by the full court (en banc) rather than the standard three-judge panel. OSHA opposes this motion, in part, due to the anticipated delay in having the full court – all 16 judges – available to hear the case. There are also motions pending which seek to have the consolidated cases transferred to different circuit courts – the District of Columbia Circuit and the Fifth Circuit.
It will likely be the week of Dec. 13 before employers know whether the ETS stay will continue or be lifted, as well as whether the case will remain in the Sixth Circuit and be heard by the court en banc.
Lockton comment: Many employers began preparation for the implementation of the ETS as soon as it was published. Some employers have halted those efforts awaiting the outcome of the legal challenges. We don’t know with any degree of certainty if the Sixth Circuit is likely to overturn the stay; however, it is a conservative Circuit with 11 of the 16 active judges appointed by the Republican party. Since the OSHA ETS provides employers with options – mandate the vaccine or have unvaccinated employees mask and test weekly – one issue to consider during this interim period is which of the two options it will likely pursue. If going the testing route, determining the method of testing and logistics may be time well spent.
If the stay continues and the motions to transfer are denied, the Sixth Circuit will establish a briefing schedule and set a hearing date (which will likely occur in early 2022). Once a ruling is issued, the case will likely be heard by the U.S. Supreme Court – which means further delays.
Lockton comment: The ETS is only effective for six months from the date it is published. It is set to expire on May 5, 2022. The present stay does not impact the running of this six-month period.
CMS vaccine mandate
The same day the Department of Labor released the OSHA ETS, the CMS published its interim final rule mandating the COVID-19 vaccine for covered healthcare employers. Legal challenges quickly ensued across the country. On Nov. 29, a Missouri federal district court issued an order staying the implementation of the CMS vaccine mandate in the following 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, New Hampshire, Nebraska, North Dakota, South Dakota and Wyoming. The next day, a federal court in Louisiana presiding over a case filed by 13 states issued a preliminary injunction for the remaining 40 states determining the CMS lacked authority to issue the mandate. The CMS is stayed nationwide by these rulings.
The Biden administration has appealed the Louisiana court’s injunction. This appeal will be heard by the Fifth Circuit (the same Circuit granting the nationwide stay of the ETS). The stay issued by the Missouri federal court has not yet been appealed, but that is expected. It will be heard by the Eighth Circuit Court of Appeals.
Lockton comment: Given the present “freeze” on the CMS vaccine mandate, should an appeals court overturn the stay, new compliance deadlines would likely be established to afford covered healthcare providers an opportunity to come into compliance.
Federal contractor vaccine mandate
As it stands now, the federal contractor vaccine mandate requires employees of covered contractors and subcontractors to be fully vaccinated by Jan. 18, 2022. On Nov. 30, a federal district court in Kentucky issued a preliminary injunction staying this mandate in Kentucky, Ohio and Tennessee. Any appeal of this ruling would be heard by the Sixth Circuit (the Circuit deciding the fate of the ETS). While only three states are impacted by this case, there are several other pending legal challenges to this mandate. Next week, courts across the county will hear arguments on motions to stay this vaccine mandate impacting more than a dozen states. Further orders staying this mandate are likely to be issued.
Lockton comment: As of this date, nothing changes for federal contractors and subcontractors with no offices, operations or employees in one of the three impacted states. Since the government issued its initial guidance on the federal contractor vaccine mandate, it extended the deadline for full vaccination to Jan. 18, 2022, to be in alignment with the OSHA ETS. It is unclear whether there will be any additional extensions to this deadline given the stay of the ETS. Current guidance on this vaccine mandate from the Safer Federal Workforce Task Force can be found here and is discussed in this alert.
With recent activity at the state level addressing vaccine mandates, what should employers do now?
While the legal challenges surrounding the federal vaccine mandates have kept the federal courts busy, states have not sat idly by. Employers contemplating a vaccine mandate while awaiting the outcome of one of these legal challenges should review applicable state laws — several of which have expanded exemptions available to employees or otherwise restricted a private employer’s ability to effectuate a vaccine mandate. Here are a few of the latest developments:
- Alabama: Private employers can mandate the COVID-19 vaccine but must afford employees an exemption for medical reasons (including prior COVID-19 infection) and sincerely held religious beliefs.
- Florida: Private employers are banned from mandating the COVID-19 vaccine unless employees are afforded exemptions for medical reasons, religious beliefs, COVID-19 immunity, periodic testing or the use of employer-provided personal protective equipment.
- Kansas: Private employers can mandate the COVID-19 vaccine but must afford employees exemptions if the vaccine endangers the life or health of the employee, endangers the life or health of an individual residing with the employee or violates a sincerely held religious belief of the employee. Employers cannot inquire into the sincerity of an asserted religious belief.
- Tennessee: Private employers can mandate the COVID-19 vaccination but cannot require employees to provide proof of vaccination.
- Utah: Private employers must exempt an employee from a COVID-19 vaccine mandate for medical reasons, sincerely held religious beliefs or a sincerely held personal belief that conflicts with the vaccine requirement. If an employer requires that unvaccinated employees be tested, the employer must pay for the testing.
Some of these state laws specifically exempt employers covered by the federal contractor mandate and CMS mandate meaning employers are not bound by the broader state law which conflicts with the federal vaccine mandates.
Lockton comment: Employers should carefully review applicable state laws if moving forward with a vaccine mandate. Also, be aware that some state laws afford employees greater protection when evaluating whether a reasonable accommodation is an undue hardship. As always, the accommodation process should be well documented.
All three of the federal vaccine mandates provide that conflicting state laws are preempted. If the OSHA ETS stay is lifted, there is certain to be more developments regarding the conflicting state laws.
We will continue to monitor developments with the legal challenges to the federal vaccine mandates and keep you updated as the details unfold. If you have questions, please reach out to your Lockton account team.