Last fall, many employers were furiously drafting mandatory COVID-19 vaccine policies. With the back and forth of court challenges and appeals, many of those policies were left in a state of limbo. Here is an update on the status of some of those vaccine mandates.
Federal Contractor Vaccine Mandate
On August 31, 2022, the Biden administration updated the Safer Federal Workforce Task Force Guidance, which previously required mandatory vaccination for all employees who work on or in connection with a federal contract. This updated guidance comes after a federal appellate court ruled that the nationwide injunction of the vaccine mandate for federal contractors was overbroad. Thus, the federal government was briefly able to enforce the mandate “in new and existing procurement contracts between the federal government and nonparties, and in the selection process following solicitations in which no plaintiff participates as a bidder.” The injunction continued for the states involved as named plaintiffs and the individual contractor plaintiffs.
The government, however, dispelled any panic for contractors not covered under the injunction after the court’s order by ensuring it would not enforce the vaccine requirement. Under the new guidance, the federal government will take no action to implement or enforce the vaccine requirement. For employers that had already added the mandatory vaccine requirement to their existing contracts, the government will also not seek to require continued compliance with the vaccination rules.
The Safer Federal Workforce Task Force Guidance continues to make updates to its COVID-19 protocols for federal contractors consistent with the updated guidance from the Centers for Disease Control and Prevention (“CDC”). Federal contractors should continue to visit the Safer Federal Workforce website to ensure compliance with the latest guidance found in the frequently asked questions.
OSHA Emergency Temporary Standards
Back in November 2021, the Occupational Safety and Health Administration (“OSHA”) required employers with more than 100 employees to either mandate vaccines or require weekly testing. After a slew of litigation and a Supreme Court decision, OSHA withdrew its vaccination and testing Emergency Temporary Standard (“ETS”) in January 2022. OSHA, however, stated that it was not withdrawing the ETS as a proposed rule, but stated it was “prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”
On August 26, 2022, a federal court of appeals ruled on a lawsuit brought by National Nurses United and other unions representing healthcare employees. The unions hoped to expedite the OSHA process of issuing a permanent COVID-19 healthcare standard. The unions requested that OSHA (1) issue a permanent standard within 30 days of a court ruling, (2) retain the previous Healthcare ETS that lapsed in December 2021 until a permanent standard supersedes it, and (3) enforce the lapsed Healthcare ETS. The court ruled that OSHA could implement the permanent ruling, if any, on its own time and it would not otherwise take any action to expedite the process.
OSHA has not otherwise issued any additional COVID-19 ETS rules, but continues to encourage vaccinations. Throughout the spring of 2022, OSHA accepted comments regarding the final rulemaking for healthcare employees regarding COVID-19. OSHA still has not issued a permanent standard.
CMS Vaccination Rule
The Centers for Medicare and Medicaid (“CMS”) Omnibus COVID-19 Health Care Staff Vaccination Rule (the “Rule”) is the only remaining vaccine mandate out of the three issued by the Biden administration. Since January 2022, when the Supreme Court upheld the vaccine mandate, employers have been grappling with implementing and enforcing the vaccine mandate. The Rule required full vaccination for eligible healthcare workers, except employees with exemptions based on religious beliefs or medical conditions. For Arkansas, Kansas, Missouri, and Oklahoma employers, February 14, 2022, was the Phase I deadline for employees to have the first dose of a vaccine. Phase 2 required employees to be fully vaccinated or have received an exemption by March 15, 2022.
CMS continues to enforce the requirement through onsite survey reviews and issue citations for noncompliance with the vaccination mandate. CMS has allowed employers the opportunity to come into compliance based on the severity of the noncompliance. But a facility’s continued failure to comply runs the risk for additional enforcement actions, including losing Medicare or Medicaid payment.