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Volume XIII, Number 39

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Federal Vaccine Mandates Are Back in Play—for Now

The courts continue to move the vaccine mandate goalposts on employers as dozens of legal challenges work their way through the courts. The latest developments are major game changers for employers. As of the publishing of this On the Subject, the US Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) vaccine-or-test rule is enforceable nationwide, and the US Centers for Medicare & Medicaid Services (CMS) Interim Final Rule (IFR) mandating vaccination, subject to exemptions, is enforceable in 25 states.

BACKGROUND

As we previously reported, in September 2021, US President Joe Biden announced a three-part federal vaccine mandate for large employers, certain healthcare providers and federal contractors. In furtherance of that announcement, OSHA issued its ETS requiring large employers with 100+ employees to implement a vaccine-or-testing policy (or a vaccine mandate, if preferred); CMS issued an IFR requiring vaccination, subject to exemptions; and the federal government issued its guidance requiring covered federal contractors to mandate vaccination, as well.

Litigation ensued in multiple venues as to all three federal vaccine mandates, and courts issued various stays of enforcement as to each mandate, effectively staying enforcement on any federal vaccine mandate nationwide.

However, on December 15, 2021, the US Court of Appeals for the Fifth Circuit lifted the CMS IFR stay as to 25 states, and on December 17, 2021, the US Court of Appeals for the Sixth Circuit dissolved the OSHA ETS stay nationwide.

SUMMARY OF VACCINE MANDATE STATE-OF-PLAY

High-level, the following is a summary of the enforceability and deadlines on each of the three federal vaccine requirements:

  • The OSHA ETS stay of enforcement has been lifted nationwide. On December 17, 2021, OSHA issued a statement confirming that it plans to enforce its ETS, but the agency will have a grace period for compliance, as follows:

    • Immediately, employers must start taking good faith steps to come into compliance with the standard.

    • January 10, 2022, is the new deadline to have a written policy, require masking for unvaccinated employees and provide PTO for employees to get vaccinated.

    • February 9, 2022, is the new deadline to require unvaccinated employees to begin testing weekly for COVID-19.

  • The CMS IFR stay of enforcement has been lifted as to 25 statesCMS could begin enforcement immediately in the 25 states where the stay has been lifted. CMS has not yet issued an official statement on enforcement or timing.

  • The federal contractor vaccine mandate is currently under a nationwide stay of enforcement. No enforcement is permitted at this time.

Additional details regarding each vaccine mandate are below. The legal landscape remains fluid on these rules, and impending Supreme Court of the United States appeals may change the state of play further.

VACCINE MANDATE STATE-OF-PLAY: IN DETAIL

OSHA ETS (vax-or-test mandate for large employers): 

  • What is the latest development? The OSHA ETS nationwide stay was dissolved by the Sixth Circuit on December 17, 2021.

    • Previously, the Fifth Circuit originally issued a nationwide stay of enforcement on this vax-or-test rule pending resolution of the case on the merits; however, as is the procedure when there are multiple similar challenges in various circuit courts, the case was then consolidated with other similar challenges and transferred to the Sixth Circuit for further review.

  • What does this mean? The dissolution of the stay means that OSHA could begin enforcement of the ETS nationwide immediately. OSHA issued a statement confirming that it plans to enforce its ETS, but the agency will permit a grace period for compliance.

    • Immediately, employers must start taking good faith steps to come into compliance with the standard.

    • January 10, 2022, is the new deadline to have a written policy, require masking for unvaccinated employees and provide PTO for employees to get vaccinated.

    • February 9, 2022, is the new deadline to require unvaccinated employees to begin testing weekly for COVID-19.

  • What’s next? This decision is appealable and will likely be appealed by the ETS challengers, ultimately seeking review from the Supreme Court.

CMS IFR (vaccine mandate for specified CMS-regulated provider/supplier types):

  • What is the latest development? The CMS IFR nationwide stay was lifted as to 25 states this week by the Fifth Circuit. The other 25 states remain under an enforcement stay. (The list of states with or without a stay is in the below chart; however, the list remains fluid day-to-day as courts issue piecemeal orders.)

    • Previously, the CMS IFR was originally subject to several piecemeal stays of enforcement issued by multiple courts. The Fifth Circuit order narrowed one of those courts’ broad stays, limiting it only to the plaintiff states in the litigation.

  • What does this mean? The partial dissolution of the stay means that CMS could begin enforcement of its rule in the 25 states that do not currently have a stay in place (however, CMS has not announced its intention on this yet).

  • What’s next? Two big-picture items to look out for:

    • More piecemeal stays may be in our future. When the Fifth Circuit partially lifted the stay on Wednesday, December 15, it was lifted as to 26 states including Texas, and a Texas court quickly implemented a statewide stay. We expect other states may follow suit in the days to come, so the state list remains fluid.

    • On the other side, CMS has asked the Supreme Court to lift the stay as to the remaining stayed states, and the Supreme Court has set a briefing schedule that has briefs due through December 30, so we do not expect a ruling on this from the Supreme Court until early 2022.

CMS IFR Stay on Enforcement Remains in Place – CMS Cannot Enforce IFR Here:
CMS IFR Stay is Lifted – CMS Could Enforce IFR Here:
   
Alabama   
   
California   
   
Alaska   
   
Colorado   
   
Arizona   
   
Connecticut   
   
Arkansas   
   
Delaware   
   
Georgia   
   
Florida   
   
Idaho   
   
Hawaii   
   
Indiana   
   
Illinois   
   
Iowa   
   
Maine   
   
Kansas   
   
Maryland   
   
Kentucky   
   
Massachusetts   
   
Louisiana   
   
Michigan   
   
Mississippi   
   
Minnesota   
   
Missouri   
   
Nevada   
   
Montana   
   
New Jersey   
   
Nebraska   
   
New Mexico   
   
New Hampshire   
   
New York   
   
North Dakota   
   
North Carolina   
   
Ohio   
   
Oregon   
   
Oklahoma   
   
Pennsylvania   
   
South Carolina   
   
Rhode Island   
   
South Dakota   
   
Tennessee   
   
Texas   
   
Vermont   
   
Utah   
   
Virginia   
   
West Virginia   
   
Washington   
   
Wyoming   
   
Wisconsin   

Federal Contractor Guidance (vaccine mandate for covered federal contractors and subcontractors):

  • What is the latest development? The federal contractor rule remains stayed nationwide pursuant to a court order issued December 7, 2021.

  • What does this mean? At this time, the federal government cannot enforce their contractor vaccine mandates.

  • What’s next? Expect legal challenges to this stay by the federal government.

© 2023 McDermott Will & EmeryNational Law Review, Volume XI, Number 354
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About this Author

Michelle S. Strowhiro
Partner

Michelle S. Strowhiro is an employment advisor and litigator. She provides trusted counsel to US and international companies on all aspects of employment law compliance. Michelle partners with clients to establish and maintain their strong and lawful employment policies and practices; manage their employee relationships from hire to termination; conduct workplace investigations; administer leaves and other workplace accommodations; and resolve disputes. She provides manager and employee trainings on management and sexual harassment. She regularly prepares and negotiates...

310-788-1571
Abigail M. Kagan Employment Attorney McDermott Will & Emery New York, NY
Associate

Abigail M. Kagan focuses her practice on employment law, with particular experience in conducting transactional due diligence, defending single-plaintiff, class and collective actions, second-chairing labor negotiations, and drafting personnel policies and other employment documents. She has advised clients on EEO concerns, the gig economy, data privacy, leaves of absence, reductions in force, wage and hour audits, unemployment insurance, short-term disability, restrictive covenants, and NLRA application to non-union members.

Abigail has conducted internal investigations and...

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Sandra DiVarco Healthcare Attorney Health Systems Lawyer McDermott Will Emery Law Firm
Partner

Sandra DiVarco is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office. Sandy focuses her practice on the representation of hospitals and health systems. She has counseled health care facility and system clients regarding all aspects of health law transactions and health system restructurings. As a registered nurse, Sandy regularly advises clients on the legal aspects of clinical issues and policy/procedure matters. Sandy also has significant experience in assisting clients with...

312-984-2006
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