By now you all have likely heard that on January 13, 2022, the U.S. Supreme Court blocked the Occupational Health and Safety Administration from implementing its Emergency Temporary Standard (OSHA ETS) requiring employers with 100 or more employees to mandate employees be fully vaccinated against COVID-19 or submit to at least weekly testing for the disease.

However, the Court permitted the Centers for Medicare and Medicaid Services to enforce a vaccination mandate for health-care employees who work at facilities that receive Medicare or Medicaid funding (CMS Mandate).

So where do things stand now with regard to Employer vaccine mandates?

At the federal level

Out of the three federal vaccine mandates introduced by the Biden Administration, only the CMS Mandate remains currently in effect. The third federal vaccine mandate, Executive Order 14042, which requires federal contractors working on or in connection with federal government contracts to be fully vaccinated against COVID-19, is also currently stayed. The government has appealed the stay of the federal contractor vaccine mandate to three appellate courts. One of the appellate courts previously denied the government’s request to lift the stay and adopted a briefing schedule that is set to be completed by February 22, 2022, making it likely that any decision on the merits of the mandate and implementation of the mandate (if it survives) will be delayed until after then.

In addition, this is likely not the last attempt we will see from OSHA pertaining to protecting American workers from COVID-19. Labor Secretary Marty Walsh stated in the department’s press release that “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.”  In addition to the ETS, OSHA previously proposed a permanent vaccine or test mandate and appears to be continuing to move forward with its proposal, accepting comments through January 19, 2022.  However, the Supreme Court’s opinion suggests that such a permanent rule may not be successful.

At the state level

Several state legislatures have enacted laws prohibiting or restricting employer vaccine mandates. Others have enacted legislation mandating paid leave for vaccination and New York City has mandated vaccination for all private-sector employees who perform in-person work or interact with the public in the course of work.

Now that the OSHA mandate is blocked, state legislatures and workplace safety agencies may consider mandating workplace vaccination or testing programs. Though some, such as Iowa, have already indicated that they will not be moving forward with any such workplace rules.

What options do employers not subject to the CMS Mandate have now?

At the federal level, the Administration has encouraged employers to voluntarily mandate employee vaccination.  DOL Secretary Walsh noted in his statement that “We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace.”  The EEOC previously issued guidance detailing how an employer could implement a vaccine or testing program in compliance with federal law.

However, private employers outside of the scope of the CMS Mandate desiring to implement such a program voluntarily will have to do so in accordance with the myriad of state and local mandates and restrictions. Before moving forward with any voluntary plan employers should consult state and local laws in the jurisdictions in which their employees work. Employers may be subject to state or local laws requiring vaccination of employees or vaccination leave, or state or local laws limiting or prohibiting employer-mandated vaccinations.

Keep hold of your hats employers, the ride is not over!

While the Supreme Court’s decision as to the OSHA ETS ended immediate compliance requirements for many employers with regard to workplace vaccination and testing mandates, this is certainly not the end of the story.  Employers who are federal contractors should continue to monitor the litigation over Executive Order 14042.  And all employers should continue to monitor developments in their state and local legislatures and state workplace safety agencies that may come in reaction to the Supreme Court’s decision to block the OSHA ETS.  In the longer term we will see if OSHA moves forward with regulations pertaining to the impact of COVID-19 on the workplace. 

As always Lerch Early’s employment and labor attorneys stand ready to assist you with these compliance obligations.