As previously reported here, the Supreme Court recently issued decisions staying the Occupational Safety and Health Administration (OSHA) “vaccine or test” Emergency Temporary Standard (ETS) and upholding the Centers for Medicare & Medicaid Services (CMS) vaccine mandate for certain health care providers. Meanwhile, the vaccine mandate for federal contractors remains stayed pending appellate court review.

Check out our legal alert here, discussing what these decisions mean for employers trying to navigate the shifting maze of federal, state, and local laws.

The following dashboard provides an at-a-glance summary of the federal vaccine mandates and their current legal status.  To learn more about each mandate, follow the links to HR Law Watch articles.

PODCAST:  Catch our podcast on The Patchwork of Federal Vaccine Mandates.

Mandate Requirements of Mandate Current Status
Federal OSHA Emergency Temporary Standard (“ETS”) Requires all covered employers to ensure that employees are fully vaccinated by January 4 or test weekly, among other requirements.

HR Law Watch Links: 

6th Circuit Wins OSHA ETS Lottery

NLRB Outlines Employers’ Duty to Bargain Over Implementation of OSHA ETS

Federal Vaccine Mandates Maze Can Trap Unwary Employer

OSHA Unveils Vaccination or Testing Rule for Large, Private Employers

Summary of OSHA ETS

Stayed by Supreme Court on January 13, 2022.  See National Federation of Independent Business, et al. v. Department of Labor, Occupational Safety and Health Administration, et al., No. 21A244, 21A247, (January 13, 2022).   

 

Centers for Medicare & Medicaid Services (“CMS”) Requirements Requires vaccinations for healthcare workers.

HR Law Watch Links: 

Biden’s Vaccine Mandates For Federal Contractors and Health Care Workers Are Halted

Federal Vaccine Mandates Maze Can Trap Unwary Employer

Centers for Medicare & Medicaid Services Announce that Healthcare Staff Must Be Vaccinated by January 4

All injunctions lifted by Supreme Court on January 13, 2022.  See Biden et al. v. Missouri, et al., No. 21A240, 21A241. (January 13, 2022).  Enforcement will go into effect in all states on January 27, 2022.
Federal Contractor Executive Order Requires vaccination for some employees of federal contractors.

HR Law Watch Links: 

Biden’s Vaccine Mandates For Federal Contractors and Health Care Workers Are Halted

Federal Contractor COVID-19 Vaccine Mandate Deadline Extended

Federal Vaccine Mandates Maze Can Trap Unwary Employer

Enjoined nationwide as of December 7, 2021.  See Georgia, et al. v. Biden et al., Docket No. 1:21-cv-163 (U.S. Dist. Ct., S.D. GA, Dec. 7, 2021).

Injunction upheld by 11th Circuit on December 17, 2021.  See Georgia, et al. v. Biden, et al., No. 21-14269 (11th Cir., December 17, 2021).  

Federal Employee Executive Order Requires vaccination for federal employees.

See Federal Employee Executive Order

See Guidance 

Enjoined nationwide on January 21, 2022.  See Feds for Medical Freedom, et al. v. Biden et al., No. 3:21-cv-356 (S.D. Tex. Jan. 21, 2022).

Continue Reading Federal Vaccine Mandate: Scorecard

The Supreme Court issued two opinions on January 13, 2022 relating to federal agency vaccination rules and mandates. In one opinion, the Court issued an emergency stay of the Occupational Safety and Health Administration (OSHA) “vaccine or test” Emergency Temporary Standard (ETS). In another opinion, the Court upheld the Centers for Medicare & Medicaid Services (CMS) vaccine mandate for certain health care providers.

OSHA “Vaccine or Test” ETS

As previously reported here, the OSHA ETS would require employers with 100 or more employees to require that workers either receive the COVID-19 vaccine or submit to regular COVID-19 testing and wear a face covering.

The Court found that the Occupational Safety and Health Act, OSHA’s authorizing statute, grants OSHA the power to “set workplace safety standards, not broad public health measures.” The vaccine or test rule, therefore, falls outside of the agency’s scope of authority.

The Court further stated that COVID-19 is a “universal risk” and that “[p]ermitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.” The Court found that OSHA does have authority to regulate occupation-specific risks related to COVID-19 where the virus poses a special danger because of the particular features of an employee’s job or workplace.

The dissent argued instead that OSHA has authority to issue the rule because COVID-19 is a “new hazard” and “physically harmful agent” that poses a “grave danger” to millions of employees.

The 6-3 decision of the Court was issued per curiam, with Justices Gorsuch, Thomas, and Alito concurring in the decision, and Justices Breyer, Sotomayor, and Kagan dissenting. The Court stayed the ETS pending disposition of the petitions for review in the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if timely sought.

CMS Vaccine Mandate

As previously reported here, the CMS vaccine mandate requires facilities that receive Medicare and Medicaid funding to ensure that their staff are vaccinated against COVID-19.

By a 5-4 vote, the Court released the CMS rule from the stays imposed by two district courts, thus allowing the rule to take effect. Justice Thomas issued a dissenting opinion, joined by Justices Alito, Gorsuch and Barrett.

The majority found that the Secretary of Health and Human Services was authorized to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” As “COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease,” the Court found the Secretary properly determined that a “COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.” Accordingly, a vaccine mandate is “necessary to promote and protect patient health and safety” in the face of the ongoing pandemic.

In distinguishing between the OSHA ETS and the CMS vaccine mandate, the Court said that the “challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it” (i.e., OSHA). At the same time, “such unprecedented circumstances provide no grounds for limiting the exercise of authorities an agency has long been recognized to have” (i.e., CMS).

So, now what?

Employers governed by the CMS vaccine mandate should continue to adhere to the requirements laid out in the mandate.

For employers who would have been covered by the OSHA ETS, there are some decision points. The ETS is not permanently off the table and there is still the possibility of formal rulemaking on this topic. So, employers should continue to think about their approach to mandates and testing. Some employers may choose to proceed with a mandate, especially in light of the recent Omicron surge. Others may wish to adopt a vaccine or test program (along the lines of what they planned under the ETS). Just because the federal government is not mandating specific vaccination and testing requirements does not mean that the concerns underlying the issuance of the ETS in the first instance have resolved. So, employers should continue to focus on workplace safety and monitor developments from the CDC and state and local governments.

Ballard Spahr’s Labor & Employment Group counsels employers regarding the changing requirements and status of the COVID-19 vaccine mandates and workplace safety and compliance.

The U.S. Department of Labor, Wage and Hour Division (DOL-WHD) and National Labor Relations Board (NLRB) announced plans to collaborate “to enhance and maximize the enforcement of the federal laws administered between the two agencies.”  The DOL-WHD enforces the minimum wage and overtime requirements while the NLRB enforces the National Labor Relations Act (NLRA).

Under the parties’ Memorandum of Understanding (MOU), if during the course of an investigation, personnel for DOL-WHD or NLRB learn about activities that may be unlawful conduct that falls within the jurisdiction of the other agency, they will advise the employees of the opportunity to file a charge/complaint with the other agency.  However, in certain cases, the agencies may take it a step further and opt to conduct a coordinated investigation.  DOL-WHD and NLRB staff will undergo training to assist personnel for each group in identifying cases that may come under the purview of the other agency.

The MOU was signed by representatives from the DOL-WHD and the NLRB in December, but was not made public until Thursday, January 6.  The MOU will remain in effect for five years, unless cancelled by either party.

The agencies are exploring ways to “efficiently systematize procedures” to share data that supports each agency’s enforcement mandates.  Areas of focus for the agencies include, in part, the misclassification of employees as independent contractors and the investigation of single or joint employer structures.  According to the NLRB’s federal regulator agenda, beginning in February 2022, the Board plans to again engage in rulemaking regarding the joint employer standard.  Given the current composition of the Board, it is anticipated that any change to the joint employer rule will be more employee-friendly.

Now, with the two agencies working collaboratively, employers should expect that there will be heightened government scrutiny and enforcement on issues like employee classification and joint employer relationships, which are identified priorities for the Biden Administration.

Ballard Spahr proactively works with our clients to advise them on updating their policies and practices to protect against and respond to government enforcement actions and to stay compliant with rapidly changing regulatory standards.

The U.S. Supreme Court has announced that it will expedite its consideration of the Biden Administration’s COVID-19 vaccine mandates.  Legal briefing is already under way and the Court will hear oral argument on January 7, 2022 on the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) mandating COVID-19 vaccination or testing.  Commonly known as the “shot-or-test” rule, the ETS is currently in effect, but OSHA has agreed to hold off on its enforcement until January 10 for all requirements except testing, and February 9 for testing requirements.

The Supreme Court will resolve the issue of whether the ETS is enforceable or if it exceeds the Administration’s authority.  We have previously reported that a nationwide stay on the ETS was lifted by the Sixth Circuit, here.

In addition, the Supreme Court will also hear arguments on January 7 on the emergency Interim Final Rule issued by the Centers for Medicare and Medicaid Services (CMS), which we previously reported on here.  Currently, the CMS vaccine rule is valid in 26 states, but has been enjoined in 24 states.

Ballard Spahr’s Labor & Employment Group actively counsels health systems and businesses about the status of both rules, and how to plan given the constantly shifting COVID-19 regulations and workplace safety landscape.  We continue to advise employers to have contingency plans in place and proceed carefully given the rise in COVID-19 litigation involving the workplace.

The federal Fair Chance to Compete for Jobs Act of 2019 (Fair Chance Act) officially took effect this week on December 20, 2021.  The law was signed two years ago as Section 1123 of the National Defense Authorization Act for Fiscal Year 2020.

Known as the “Ban the Box” Act, it prohibits federal contractors from asking applicants seeking work under federal contracts about their criminal histories until after the contractor extends a conditional job offer. On many job applications, the criminal history or record question is answered by checking a box stating “Yes” or “No.” This new restriction is intended to make it easier for people with a record to get jobs.

Exceptions to the restriction include when consideration of the criminal history record is required by law; the employee will have access to classified information; or the employee will perform sensitive law enforcement or national security duties.

From a practical standpoint, federal contractors should review their hiring policies and application requirements. And keep in mind the existing “Ban the Box” laws in many locales — 35 states and over 150 cities and counties — may add additional requirements or restrictions on top of the federal ones.

On December 17, the Sixth Circuit issued an opinion lifting the nationwide stay of the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) mandating COVID-19 vaccination or testing. As previously reported here, the ETS requires employers with 100 or more employees to either require that workers receive the COVID-19 vaccine or submit to regular COVID-19 testing and wear a face covering.

OSHA is now free to enforce the ETS, but has stated it will delay any enforcement action until January 10 for all requirements except testing, and February 9 for testing requirements. OSHA’s website states:

“OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”

The opinion, authored by Judge Jane Stranch, an Obama appointee, and joined by Judge Julia Gibbons, a George W. Bush appointee, found that the ETS is within the bounds of OSHA’s statutory authority. Under the Occupational Safety and Health Act, OSHA can issue emergency standards if necessary to protect workers from a “grave danger.” The Court found that “[g]iven OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace… [i]ndeed, no virus—HIV, HBV, COVID-19—is unique to the workplace and affects only workers.”

In response to the Fifth Circuit’s argument that the ETS must fail because OSHA did not implement the standard at the beginning of the pandemic, the Sixth Circuit found that OSHA properly explained its reasoning for its delay. Specifically, the Court held that “OSHA addressed COVID-19 in progressive steps tailored to the stage of the pandemic, including consideration of the growing and changing virus, the nature of the industries and workplaces involved, and the availability of effective tools to address the virus.” Given the rise of the Delta variant, the ineffectiveness of voluntary guidance, and the FDA approval of certain vaccines, the Court found that OSHA offered an adequate explanation as to the timing of its decision.

The Sixth Circuit further found that OSHA demonstrated that COVID-19 poses a “grave danger” to workers. OSHA provided evidence that “working age Americans (18-64 years old) now have a 1 in 14 chance of hospitalization when infected with COVID-19.” The Court further stated that “[t]he Fifth Circuit’s conclusion, unadorned by precedent, that OSHA is ‘required to make findings of exposure—or at least the presence of COVID-19—in all covered workplaces’ is simply wrong…. On this point, OSHA has demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.”

Additionally, the Sixth Circuit found that OSHA satisfied its burden of showing that the ETS is essential to reducing the grave danger. The Court stated that “[e]xtensive evidence cited by OSHA shows that vaccination ‘reduce[s] the presence and severity of COVID-19 cases in the workplace,’ and effectively ‘ensur[es]’ that workers are protected from being infected and infecting others.”

Finally, the Sixth Circuit found that the Petitioners failed to demonstrate an irreparable harm if the ETS goes into effect. In fact, the Court stated that the costs of delaying the standard are high. The Court found that “the ETS is an important step in curtailing the transmission of a deadly virus that killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs” and that OSHA estimates “the ETS will ‘save over 6,500 worker lives and prevent over 250,000 hospitalizations’ in just six months.”

An appeal to the U.S. Supreme Court has already been filed, but the ETS will remain in effect unless the U.S. Supreme Court issues a stay. Another significant byproduct of the stay being lifted is that the OSHA ETS, by its terms, preempts conflicting state or local laws. For employers struggling with putting a vaccine mandate in place in those states, like Texas, which have restricted such employer mandates by legislation or executive order, the OSHA ETS paves the way to take the position that such restrictions no longer apply.

As we previously reported here, the Biden Administration has seen significant setbacks as courts around the country halt the administration’s vaccine mandates, including the emergency Interim Final Rule issued by the Centers for Medicare and Medicaid Services (CMS). Specifically, on November 29, Judge Matthew T. Schelp of the U.S. District Court for the Eastern District of Missouri enjoined the CMS Rule in the ten states who brought an action seeking preliminary injunction (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming). Shortly thereafter, Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana enjoined the CMS Rule nationwide in a suit brought by 14 plaintiff states. As a result, the CMS Rule was halted nationwide on November 30.

CMS appealed Judge Doughty’s ruling to the Fifth Circuit. On December 15, the Fifth Circuit issued an opinion staying the injunction with respect to all states not a party to the action. The Court noted that Judge Doughty gave little justification for issuing an injunction outside the 14 states bringing the suit, and that as an issue of great significance being litigated across the country, the ultimate resolution of the CMS rule should have the benefit of competing decisions from other jurisdictions.

Practically speaking, the Fifth Circuit’s ruling means that the CMS Rule remains halted in the 14 states that are plaintiffs in the Louisiana action (Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky and Ohio) as well as the 10 states involved in the Missouri action. In the 26 states not involved in either action, the CMS rule is no longer enjoined. Those states include: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington, and Wisconsin.

Going forward, we expect to see guidance on implementation and enforcement issued by CMS as well as challenges brought by states not covered by either injunction. And, as the Fifth Circuit seems to suggest, competing rulings from multiple jurisdictions make Supreme Court review of the Rule likely. Ballard Spahr’s Labor & Employment Group is prepared to counsel impacted health systems and businesses about the status of the Rule, and how to plan given the constantly shifting landscape.

On December 14, 2021, the EEOC updated its COVID-19 Technical Assistance manual Technical Assistance manual to address when employees who contract COVID-19 are covered under the Americans with Disabilities Act (“ADA”). The ADA generally prohibits discrimination against (1) a person with disability; (2) a person who has a record of impairment; or (3) an employee who is regarded by the covered entity as an individual with a disability. Employers are also required to accommodate qualified individuals with disabilities. There is no obligation to accommodate people based on a record of impairment or who are regarded as disabled.

Under the EEOC guidance, mild cases of COVID-19 are not likely to meet the ADA’s definition of actual disability. According to the EEOC, a person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA. The guidance explains that when COVID-19 affects major bodily functions, on the other hand, it may rise to a disability. COVID-19 may affect major bodily functions, such as functions of the immune system, special sense organs (such as for smell and taste), digestive, neurological, brain, respiratory, circulatory, or cardiovascular functions, or the operation of an individual organ. In addition, COVID-19 may affect other major life activities, such as caring for oneself, eating, walking, breathing, concentrating, thinking, or interacting with others. When it does so, the person may be disabled, depending on how long the impairment lasts.  Although there is no bright-line test to determine when an impairment has lasted long enough to be a disability, the EEOC has discussed the distinction between covid-19 related symptoms that last for several months, where employees are substantially limited in a major bodily function or life activity, and circumstances where covid-19 symptoms last for several weeks, where employees were considered not to be substantially limited. This is a fact intensive inquiry.

Employers should continue to use a case-by-case approach and make individual fact determinations to assess whether an employee’s condition is covered under the ADA. For example, if an employee has a brief and mild case of COVID-19 with no lingering symptoms, the person is likely not considered “disabled” within the meaning of the ADA. It is more likely that a COVID-19 patient who continues to feel the effects for months is “disabled” under the ADA. If the employee does qualify as disabled, then the employer’s next step is to proceed with the reasonable accommodation versus undue hardship analysis and use the interactive process and document the decision whether or not an accommodation is achievable.

Ballard Spahr’s Labor & Employment Group has assisted employers across the nation in assessing ADA compliance and accommodation issues, revising and updating workplace policies and in addressing accommodation requests, concerns, or complaints related to COVID-19. Through the COVID-19 Resource Center COVID-19 Resource Center, our lawyers have kept our clients and friends informed on COVID-19 developments throughout the pandemic.

On December 7, 2021, the U.S. District Court for the Southern District of Georgia issued an order enjoining the COVID-19 vaccine mandate for federal contractors and subcontractors pursuant to Executive Order 14042 (Executive Order) from going into effect nationwide.  Although the Georgia court discussed the “tragic toll” the COVID-19 pandemic has wrought, the court ruled it was likely that the plaintiffs will succeed in their claim that President Biden exceeded his authority when issuing the Executive Order.

The court concluded that each of the four requirements for issuing a preliminary injunction were met: (1) a substantial likelihood of ultimate success on the merits; (2) an injunction is necessary to prevent irreparable injury; (3) the threatened injury outweighs the harm of the injunction; and (4) the injunction would not be adverse to the public interest.

The court reasoned that the plaintiffs were likely to succeed on the merits because the court was unconvinced the Procurement Act clearly authorized President Biden to issue the Executive Order.  The court reasoned that the Procurement Act allows the President wide ranging authority over administrative and management issues, but does not clearly authorize the President to issue a public health regulation like the Executive Order.

In addition, the court held that an injunction was necessary to prevent irreparable injury due to the costs to federal contractors in complying with the mandate.  The court further reasoned the Executive Order’s threatened injury outweighed any potential harm of the injunction because the injunction maintains the status quo, and federal contractors can choose to encourage employees to get vaccinated, leaving employees the choice whether to get the shot.  The court discussed how, if the injunction was denied, federal contractors would be required to make decisions that would “significantly alter their ability to perform federal contract work which is critical to their operations.”

Finally, the court found granting the injunction is in the public interest due to the “economic uncertainty” and “workplace strife” caused by the Executive Order, and granted the preliminary injunction enjoining enforcement nationwide.  The court’s order follows the decision from the U.S. District Court for the Eastern District of Kentucky granting a preliminary injunction to block enforcement of the Executive Order in Kentucky, Ohio, and Tennessee.  The Kentucky decision has been appealed, and we expect the federal government to appeal the Georgia decision.  However, federal contractors and subcontractors are not currently required to comply with the Executive Order’s requirement to have all covered employees fully vaccinated by January 18, 2022.

Ballard Spahr’s Labor & Employment Group counsels employers regarding the changing requirements and status of the COVID-19 vaccine mandates and workplace safety and compliance.