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The Rollercoaster Continues to Roll: Federal Vaccine Mandates Back On?

Labor & Employment Otto Immel, Lindsey Davis, Kaitlin Phillips, Brenna Wildt, Amanda Collins

We recently provided updates on the complex and unsettled legal landscape surrounding the various federal vaccine mandates in an FAQ, “Vaccination Mandates: The Latest on OSHA’s Emergency Temporary Standard, Other Mandatory Vaccination Considerations, and Answers to FAQs.” In the previous FAQ, we summarized the status of each federal vaccine mandate and provided answers to important employer questions. Since then, the situation has continued to develop—and rapidly so. Salient updates for each mandate are summarized below.

Occupational Safety and Health Administration Emergency Temporary Standard (OSHA ETS)

Status of the Litigation

Perhaps the most notable development since we circulated our FAQ earlier this month is the nationwide reinstatement of the OSHA ETS.

In our previous FAQ, we explained that the 5th Circuit stay on the OSHA ETS remained in place, pending 6th Circuit review. Challengers of the ETS petitioned the court to hear the case en banc, or “in the bench,” so that the case would be heard before all 16 judges. The 6th Circuit denied this motion on December 15, publishing an order stating the case would be heard by its usual randomly-selected three-judge panel. Before it announced which judges would make up this panel, however, the court issued its final decision on the matter: Judge Gibbons, Judge Stranch, and Judge Larsen granted the government’s motion to dissolve the 5th Circuit’s stay late Friday afternoon, thereby reenacting the OSHA ETS across the United States.

Judge Jane B. Stranch, a Barack Obama appointee, wrote for the majority of the 2-1 split panel. Judge Julia Smith Gibbons, a George W. Bush appointee, concurred with the majority decision entirely and wrote separately to raise a few additional points. Judge Joan Larsen, a Donald Trump appointee, dissented, indicating that she would have denied OSHA’s motion to dissolve the stay. The majority determined that OSHA has “long asserted its authority to protect workers against infectious diseases,” including viruses, so regulating measures to protect workers and the general public from COVID-19 is hardly a stretch. The court agreed with OSHA that COVID-19 and the emergence of the Delta and Omicron variants constitute an emergency situation which puts workers in grave danger, necessitating OSHA regulation. The court thus rejected the petitioners’ arguments and dissolved the 5th Circuit stay.

As we predicted in our FAQ, emergency motions to the United States Supreme Court seeking to overturn the panel’s decision have already been filed. Supreme Court Justice Brett Kavanaugh is assigned to review the motions and may choose to rule on the emergency motions to reinstate the stay himself or he may refer the appeal to the full court for review, which then may affirm or overturn the 6th Circuit’s decision, or deny review, therefore leaving the 6th Circuit decision, and the OSHA ETS, intact.

Given this reinstatement, OSHA announced that it once again plans to implement its ETS in workplaces with 100 or more employees across the country, but with new enforcement deadlines.

Immediate Action Points for Employers

Essentially, OSHA has pushed back its initial deadlines for compliance (i.e., December 6, 2021 and January 4, 2022) by one month. More specifically, although the actual dates in the ETS are unchanged, OSHA announced that it will not issue citations for noncompliance with the ETS before January 10, 2022, and will not issue citations for noncompliance with any testing requirements before February 9, 2022—as long as an employer is expending good faith and reasonable efforts to work toward implementation. If a covered employer is not making such efforts to comply with the ETS requirements, OSHA may still issue citations for noncompliance for not meeting the original deadlines, regardless of its newly announced January and February benchmarks.

Therefore, if they have not done so already, prudent employers should be prepared to immediately begin implementing an ETS-compliant policy, and work toward ensuring all employees are adhering to that policy. See our previous alert for more information on the ins and outs of the OSHA ETS requirements. For ready-to-go, template OSHA ETS-compliant policies and forms, please contact Quarles & Brady.

Note that the compliance landscape is especially complex for employers with operations in states that have enacted restrictions on mandatory vaccination (to date: Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia). Although the ETS expressly overrules such restrictions, the legal challenges to those provisions have not yet been addressed. Employers with operations in those states should seek legal counsel for careful guidance.

Centers for Medicare & Medicaid Services Omnibus Staff Vaccination Rule (CMS Rule)

In our previous FAQ, we also noted that the CMS Rule was stayed nationwide. Recently, the government prevailed in paring back this order.

On December 15, the 5th Circuit held that the nationwide injunction issued by a Federal District Court in Louisiana only applies to the 14 states that petitioned for the review in that court. In the meantime, an additional stay issued by a federal court in Missouri remains intact. This means that, in 26 states, the CMS Rule is still in effect. A list of these states can be found here. However, it is still unclear whether CMS will enforce the mandate until all of the litigation is fully settled. Indeed, CMS indicated in late November that it will suspend enforcement of the mandate pending future developments in the litigation, and has not released an update since.

The federal government petitioned the US Supreme Court to stay both the Louisiana and Missouri courts’ injunctions. The Supreme Court asked the mandate-challengers to respond to the government’s application by December 30. Until the Supreme Court decides the matter, it is most likely that the CMS mandate will remain stayed in about half of the states, but will remain in force in the other half. The mandate could be reinstated at any time, so employers should continue to prepare for the possibility that the law will be held enforceable. Quarles & Brady will continue to monitor this situation, including whether CMS will decide to enforce the mandate in the non-stayed states.

President Biden’s Executive Order on Ensuring COVID Safety Protocols for Federal Contractors (Federal Contractor Executive Order)

President Biden’s Executive Order on Ensuring COVID Safety Protocols for Federal Contractors remains stayed nationwide.

The Safer Federal Workforce Task Force still maintains that it will not enforce the order while litigation is pending. The Government has already appealed at least one of the stays in the 11th Circuit and may appeal others. Accordingly, the stays could be lifted at any time, and employers may therefore be required to comply with the Federal Contractor Executive Order. Employers should prepare for this possibility.

Quarles & Brady will continue to monitor the rapidly developing situation with respect to the OSHA ETS, CMS Rule and Federal Contractor Executive Order. If you are seeking assistance in developing compliant policies or if you have any further questions, please contact your local Quarles & Brady attorney, or:

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