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Employers are in limbo (again): The uncertain state of vaccine mandates

On November 4, the federal Occupational Safety and Health Administration issued its long-anticipated Emergency Temporary Standard (ETS), requiring employers with 100 or more employees to ensure their employees are vaccinated against COVID-19 or submit to weekly COVID-19 testing by January 4, 2022. The ETs also required employers to determine the vaccine status of their employees by December 5, 2021 and require unvaccinated employees to wear masks by that date. The rule was expected to cover more than 80 million workers.

On November 6, 2021, a federal court issued an injunction halting OSHA’s implementation of its ETS, throwing a wrench into the relevant compliance timelines.  OSHA subsequently announced suspension of  its enforcement of the rule pending a ruling from the court.  While it is unknown when the court may rule on the matter, given the briefing schedule, it is clear the previous timelines will have to be extended if the court upholds the ETS.  It is possible the Supreme Court may ultimately be called upon to decide the fate of OSHA’s  mandate-or-test rule.

The OSHA rule does not apply to employers covered by other federal mandates directed at healthcare providers and federal contractors; however, those directives have also been the subject of similar challenges.  Recently, a federal court imposed a nationwide injunction blocking implementation of the CMS rule requiring certain healthcare providers to implement mandatory vaccine policies for their employees or risk losing federal Medicare and Medicaid funding.

In addition, a federal judge temporarily blocked the federal contractor mandate from taking effect in Ohio, Kentucky, and Tennessee.  Seven other states have also challenged the mandate.  A hearing on their preliminary injunction is scheduled for December 3.

So what is an employer to do in the interim?  Many employers, perhaps seeking the cover of a government mandate, have adopted a “wait and see” approach.  However, while the challenges to the federal mandates are based largely on claims the mandates are an overreach by the federal government and/or its agencies, the courts have largely upheld employer-imposed mandatory vaccines policies.  Several large employers like CVS Health, Facebook, major airlines, and health care facilities began implementing mandatory vaccine policies over the summer when cases began to rise again as a result of the Delta variant. Given that it could take weeks to implement a compliant vaccine policy should OSHA prevail, employers covered under the ETS should prepare by creating a compliant policy in the likely event that the ETS or some modified version is upheld. 

Those employers subject to mandatory vaccine requirements under Connecticut Executive Orders 13F (healthcare facilities) and 13G (state employees and school employees) remain subject to those requirements, which went into effect in late September 2021.

Stay tuned  . . .