Vaccine Mandates: Year End Edition

Vaccine Mandates: Year End Edition

As 2021 draws to a close, employers are wading through a sea of headlines and contradictions when it comes to implementing vaccine mandates. Here’s what you need to know now:

OSHA Large Employer Mandate – Nationwide Stay LIFTED — Vaccine Mandate In Effect Starting January 4, 2022 (For Now):

  • On November 5, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) rolled out mandatory COVID vaccination policies for employers with 100 or more employees, called an “emergency temporary standard,” or ETS. The ETS gives employers a choice of imposing an across-the-board vaccine mandate on employees or in the alternative implementing regular testing.  The ETS set two deadlines:
    • By December 5, employers must have written vaccine policies developed and implemented
    • By January 4, employees must either be vaccinated or begin regular testing
  • The ETS does NOT apply to employees who work remotely, work in a location where others are not present, or work exclusively outdoors.
  • The OSHA ETS was halted by a nationwide stay issued on November 12, 2021 by the Fifth Circuit Court of Appeals, after dozens of legal challenges to the ETS were filed across the country. Those suits were consolidated into a single case before the Sixth Circuit Court of Appeals, which just last Friday lifted the stay of, and reinstated, the ETS. The Court noted that OSHA has satisfactorily “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.” The issue will likely be immediately appealed to the Supreme Court.
  • Unless OSHA moves the deadline back, or the Supreme Court takes up the issue and rules promptly, the vaccine-or-test requirements are set to take effect on January 4, 2022. If they have not done so already, employers should go ahead and develop the policies and plans they will need to implement if the ETS takes effect on schedule.

Federal Contractor Mandate – Nationwide Stay:

  • Executive Order 14042, mandating employee vaccinations for covered federal contractors, was also halted on December 7, 2021, when a Georgie federal judge issued a nationwide preliminary injunction.
  • EO 14042 set a deadline of January 4, 2022 for all employees of federal contractors to be vaccinated, but it is unlikely the pending litigation will be resolved by then.
  • Federal Contractors should continue to work with their procurement officers to develop a vaccination plan in the event the EO moves forward.

Healthcare Worker Mandate – Nationwide Stay:

  • Implementation and enforcement of the CMS Interim Final Rule, requiring COVID-19 vaccinations for all staff at Medicare and Medicaid certified facilities, is currently on hold in all 50 states due to a federal injunction.
  • The Rule, issued November 4, had set January 4, 2022 as the deadline for such employees to be fully vaccinated.

Private Mandates Still a Go:

Despite the above holds placed on federal mandates, it is important to note that employers of all sizes are perfectly within their legal rights to move ahead with their own private vaccine mandates and to terminate employees who do not comply, absent narrow exceptions.  None of the above court challenges affect the right of employers to enforce their own mandates.

Medical and Religious Exemptions:

Whether implementing their own private mandate or complying with one of the above federal mandates, employers must provide employees with the opportunity to seek medical and religious exemptions from the mandate.  However, keep in mind that there are very few valid medical or religious justifications for refusing the vaccine, and even if the medical or religious reason is valid or sincere, employers still do not have to provide accommodations for employees if accommodating creates an “undue burden.” This means that the employer is not required to accommodate if doing so would impose more than a de minimis cost. Such costs may include direct money expenditures but may also include an increased burden on other workers, increased inefficiencies, and an increased risk of spreading COVID-19 to the public and/or co-workers.  Employers are nevertheless encouraged to seek legal counsel before denying an accommodation request.