Vaccine Mandates: Where are we now?

On January 25, the Occupational Safety and Health Administration (“OSHA”) announced that it was withdrawing its Emergency Temporary Standard (“ETS”), which required that employers with 100 or more employees require their employees to be vaccinated or undergo weekly testing for COVID-19. OSHA’s retreat followed a ruling from the U.S. Supreme Court that sent the case back to a lower court for final disposition, but effectively signaled the end for the ETS. However, that same Supreme Court ruling also lifted a stay and thus breathed new life into the Center for Medicare and Medicaid Services’ mandate that health care providers that receive Medicare or Medicaid reimbursement must require certain employees to be vaccinated. Here’s a summary of where things stand with respect to the federal government’s major vaccine mandates.

CMS Mandate for Healthcare Employees:

On January 13, 2022, the Supreme Court gave the go-ahead to the Centers for Medicare and Medicaid Services’ (“CMS”) vaccination mandate by lifting stays imposed by federal courts in Missouri and Louisiana. The next day, CMS released updated compliance deadlines for the states covered by the Supreme Court ruling, including Kansas. By February 14, 2022, Kansas employers covered by the CMS vaccine mandate must ensure staff have received at least one dose of COVID-19 vaccine, or have a pending request for, or have been granted a qualifying exemption. By March 15, 2022, Kansas employers covered by the vaccine mandate must ensure staff have received all necessary doses to complete a vaccine series, or have been granted a qualifying exemption. For the states not subjected to the previous injunction and the Supreme Court case, the modified compliance dates for the CMS vaccination mandate are January 27, 2022, for the first phase and February 28, 2022, for full vaccination.

OSHA Vaccine or Test Mandate for Large Employers:

On January 13, 2022, the Supreme Court effectively shot down the Occupational Safety and Health Administration’s Emergency Temporary Standard requiring employees be vaccinated or be subjected to weekly testing. On January 25, 2022, OSHA announced that it was withdrawing the ETS, effective January 26, 2022. OSHA went on to state, “Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard. OSHA strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.”

Federal Contractor Vaccine Mandate:

On December 7, 2021, the U.S. District Court for the Southern District of Georgia issued a preliminary injunction halting the enforcement of the COVID-19 vaccine mandate for federal contractors and subcontractors in all covered contracts nationwide. At this time, the federal government cannot enforce the federal contractor mandates against federal contractors. There are ongoing appeals in numerous circuits, including the Fifth, Sixth, and Eleventh Circuits, which are reviewing the Georgia federal court’s nationwide decision. The timing of a final ruling, or whether the Supreme Court will weigh in, is unknown at this time.

Federal Employee Vaccine Mandate:

On January 21, 2022, a federal district court in Texas issued a nationwide injunction blocking enforcement of Executive Order 14043, which requires vaccination for COVID-19 for all federal workers, subject to medical and religious exemptions. The government filed an immediate appeal. While the Executive Order remains enjoined pending the appeal, an estimated 98 percent of federal workers have already been vaccinated.

Morgan Geffre
Morgan Geffre

Foulston Employment Law Attorney