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Vaccine requirement or no vaccine requirement? Where we are now.

The last few weeks have seen a whirlwind – actually whirlwinds -- of activity on the various vaccine mandates. So where do we stand?

OSHA ETS: The OSHA Emergency Temporary Standard (“ETS”) is back in effect. The ETS, which applies to employers with 100 or more employees (with some exceptions such as federal contractors and subcontractors covered by Executive Order 14042/Safer Federal Workforce Task Force guidance), requires covered employers to develop, implement and enforce a mandatory COVID-19 vaccination policy, but also allows employers to alternatively establish, implement and enforce a policy allowing employees not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace. The ETS, shortly after its issuance in early November, was enjoined by the Fifth Circuit Court of Appeals. (The act of enjoining or granting an injunction means that a court has prohibited the government from enforcing the standard or rule until a full hearing or trial can be held.) However, multi-district litigation rules then sent the case to the Sixth Circuit Court of Appeals, which reversed the Fifth Circuit’s ruling and reinstated the ETS. Of course, the Sixth Circuit’s ruling is now being appealed to the Supreme Court by a number of groups, including business and religious associations. Justice Kavanaugh is the Supreme Court justice that has purview over immediate appeals from the Sixth Circuit, and he has ordered the Biden administration to respond to the appeals by December 30, 2021. It is anticipated that the Supreme Court will take the case in early 2022. However, unless the Supreme Court stays the ETS or takes some other action, OSHA will begin enforcing the ETS immediately but will not issue citations for noncompliance with any requirements of the ETS until January 10, 2022 and will not issue citations for noncompliance with the testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to comply with the standard. Therefore, covered employers need to develop their vaccination or testing policy now and prepare to implement it by January 10, 2022.

Executive Order 14042 (Safer Federal Workplace) – Federal Contractors/Subcontractors:
Executive Order 14042, issued by President Biden in September 2021, requires federal contractors and subcontractors with certain covered contracts to ensure their employees are fully vaccinated by January 18, 2022. However, this requirement has been enjoined on a nationwide basis by a Georgia federal district court. A Kentucky federal district court had previously enjoined enforcement of the mandate in a handful of states. These rulings are being appealed, but as of now, the vaccine mandate for federal contractors and subcontractors is fully enjoined. A caveat though: contractors with a mixed workforce that includes employees not covered by the federal contractor mandate may need to enforce the OSHA ETS, if those contractors have over 100 employees. There are other exceptions that may apply as well, so please contact a Kemp Smith lawyer if you have any questions over coverage.
 
CMS Mandate: Healthcare employers covered by the Centers for Medicare & Medicaid Services (“CMS”) were also subject to a vaccine mandate. However, that mandate was enjoined, at first on a nationwide basis by a Louisiana federal district court. In an appeal of that ruling, the Fifth Circuit upheld the injunction but pared it down only to the states that actually brought suit in the Louisiana court. There were 14 of those, including Texas. A Missouri federal court also had enjoined the mandate in another 10 states. For our readers, the mandate for Texas healthcare employers is enjoined, while it is not enjoined for New Mexico healthcare employers, since New Mexico was not one of the states that challenged the CMS mandate in either the Louisiana or Missouri lawsuits. However, CMS has said it will not enforce the mandate in any jurisdiction during the pendency of the injunction. Also note that the OSHA ETS, unlike its exemption for employers covered by the federal contractor mandate, has not exempted employers covered by the CMS mandate. So those healthcare employers (with 100 or more employees) need to plan to comply with the OSHA ETS, as of now. Appeals of the CMS mandate have also made their way to the Supreme Court and are subject to December 30 briefing requirements as well.

So what do you do now? In general, if you are a federal contractor subject to Executive Order 14042, you do not need to do anything, as you are not subject to the OSHA ETS, and the vaccine mandate for federal contractors is currently enjoined. If you are an employer, other than a federal contractor subject to Executive Order 14042, with 100 or more employees, you need to plan for implementation of the OSHA ETS requirements. This means you need to develop your vaccine or test policy, and plan to implement and enforce it as soon as possible, but by no later than January 10, 2022. But wait – the Supreme Court could change all of this in the near future, so stay tuned.

In the meantime, Happy Holidays and Stay Safe!