A Tale of Two COVID-19 Vaccine Mandates
Over the last few months, manufacturers have been paying close attention to two COVID-19 vaccination mandates issued by the federal government pertaining to employers. First, on September 9, 2021, President Biden issued an Executive Order which imposed several COVID-19 safety standards and protocols, including mandatory vaccination, upon certain federal contractors and subcontractors. Second, at the direction of the White House, the Occupational Safety and Health Administration (OSHA), on November 5, 2021, published an emergency temporary standard (ETS), to minimize the risk of COVID-19 transmission in the workplace which included a mandatory vaccination or COVID-19 testing protocol for employers with 100 or more employees. What is the current status of these mandates and what, if anything, should employers be doing to prepare for, and comply with, them?
With regard to the Executive Order pertaining to federal contractors and subcontractors, covered contractor employees must be “fully vaccinated” by January 18, 2022, according to guidance issued by the White House’s Safer Federal Workforce Task Force. Therefore, by that date, such employees must be fully vaccinated and have submitted appropriate documentation to their employer, or requested and been granted a medical or religious exemption from such vaccination. Covered federal contractors and subcontractors must also ensure that all employees and visitors comply with the Centers for Disease Control and Prevention’s guidance on physical distancing and masking while in the workplace, among other measures. This mandate is currently in effect and the relevant federal agencies have been in contact with a number of covered contractors and subcontractors as it relates to their federal contracts. Therefore, covered employers should consider implementing policies and procedures to meet these compliance requirements including a process for gathering requests for medical and religious exemptions from vaccination, collecting appropriate vaccination documentation, implementing additional safety measures for unvaccinated employees, among other actions. It is important to note that under this mandate, there is no COVID-19 testing alternative to mandatory vaccination although testing may be used as an additional safety measure for employees who are granted a medical or religious exemption from vaccination. Additionally, workplaces that are covered by this mandate are exempted from the OSHA ETS.
With regard to the OSHA ETS impacting employers with 100 or more employees, which required covered employers to mandate COVID-19 vaccination or weekly testing of their employees, that standard faced a number of legal challenges after it was issued. Following the initial challenges, the U.S. Court of Appeals for the Fifth Circuit issued an order to stay implementation and enforcement of the standard on November 12, 2021; after the Court’s order, OSHA suspended any activities related to implementation and enforcement of this standard. Petitions for review of the OSHA ETS were filed across the country and these petitions were consolidated and will be heard by the Sixth Circuit. At this time, this standard is not in effect. At this time, employers with 100 or more employees are not required to comply with this order but should consider collecting documentation of vaccination from employees, even if they choose not to require vaccination, in order to prepare in the event that the OSHA ETS survives the various legal challenges; such employers may also wish to determine how they will comply if this standard survives and the timing and actions that will be required in order to do so.
This issue is changing weekly, if not daily, so covered employers should remain vigilant in following developments, legal changes and guidance, and court decisions that may impact their compliance efforts. Employers that have questions about the status of the two mandates and their applicability should seek legal counsel.