It is a happy holiday for the Biden Administration with a win, for now, on the private employer vaccine mandate, again. (See the Leavitt Group prior article) Last reported events on the private employer vaccine mandate left us with a multistate litigation lottery selecting the 6th District Federal Court of Appeals to decide the combination of court challenges across many federal jurisdictions. Fast-forward past a vaccine mandate delay awaiting other court challenges for federal contractors and healthcare workers (note – healthcare worker vaccine is back on yet again, in some states), to last Friday, when the 6th Circuit Court of Appeals decided in favor of the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS). The OSHA ETS on the vaccine mandate hands down the Biden Administration’s order to require private employers have a COVID-19 vaccination policy to ensure employees are vaccinated or tested weekly (note – the rule is different for healthcare workers). See the prior Leavitt Group article.
The 6th District Court of Appeals has, surprising to many, decided on Friday that the vaccine mandate imposed on private employers of 100 employees or more shall stand, meeting the threshold necessary to meet the “grave danger” definition required to impose an ETS. The 6th District, seated in Ohio, is considered a conservative bench and was thought by many to be a good chance at defeating the vaccine mandate. No, not so fast. Christmas will bring vaccines for everyone! At least for private covered employers with 100 or more employees where subject to federal OSHA. (Be sure to check out all of the Leavitt Group articles on the vaccine mandate on the COVID-19 Resource Center.) The 6th district panel of three judges found a sufficient grave danger was presented to afford OSHA to regulate the workplace related to COVID-19. A read of the 2-1 judge panel court opinion is a good read of the issues decided including the rationale for the “grave danger” element of imposing an ETS.
What Happens Now?
On December 17, 2021, the 6th Circuit Court of Appeals lifted the stay on the OSHA ETS. The private employer vaccine mandate Emergency Temporary Standard was withdrawn by OSHA during these Court challenges, leaving the Jan 4th effective date in question awaiting announcement by OSHA of the status of the ETS now that the 6th District court upheld its ETS status. (See below for status of the ETS effective date.) A Supreme Court challenge is likely if successful, OSHA would need to lift it’s own self-imposed stay on the rule and set an implementation schedule. Leavitt Group employee benefits compliance will let you know how to proceed once the OSHA ETS is further clarified, expected within days.
How to Prepare
- Ensure you have received the Leavitt Group educational webinars held in the last few months that discussed the vaccine mandate ETS.
- Review the OSHA Website for their available Templates & Tools. Consider use of the OSHA Workers’ Rights Fact Sheet.
- Begin communications with your employees on the policy of the company related to the vaccine mandate and available accommodations.
- Review Leavitt Group comprehensive FAQs on the private employer vaccine mandate.
OSHA Enforcement Relaxation Statement
OSHA made the following statement: “OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. …
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”
Update on Comment Period for ETS
The ETS on Vaccination and Testing was published in the Federal Register on November 5, 2021. The ETS also acts seeking proposal for a permanent standard and OSHA has decided to extend the comment period for that rule by 45 days. Written comments on any aspect of the ETS must now be submitted by January 19, 2022. Although unstated, this could indicate employers may have additional time to implement the ETS. Clarification can be expected in the coming days.
OSHA: State versus Federal OSHA Plans – Check to Determine Whether Federal OSAH ETS Applies in Your State
Don’t Forget the Federal & Healthcare Vaccine Mandates
Just the day prior to the private employer vaccine mandate decision, a decision on the healthcare vaccine mandate also came down, reversing the stay on the healthcare vaccine mandate for states within the jurisdiction. See below on it’s effect.
The federal worker court challenge is ongoing. The federal worker vaccine mandate is not in effect at the time of this writing.
Healthcare Vaccine Mandate Back in Effect
California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana*, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, Wisconsin
If you fall in the above category, CMS will soon have the authority to enforce the vaccine mandate in your state and you need to take immediate compliance steps. Any company receiving Medicare/Medicaid reimbursement will need to comply.
Healthcare Vaccine Mandate Still Blocked by Nov. 30 Louisiana Decision
Alabama, Arizona, Georgia, Montana*, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Ohio, Oklahoma, South Carolina, Utah, West Virginia
Healthcare Vaccine Mandate Still Blocked by Nov. 29 Missouri Decision
Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, Wyoming
Healthcare Vaccine Mandate Blocked by Subsequent Court Decision(s)
*Reflected in two categories because the state is typically in the jurisdiction of this court’s decision. However, the state is a plaintiff in the case pending decision. The court’s decision merely allows the rule to go into effect while the court case is pending.
Some states already have a healthcare vaccine mandate (e.g., California). State law will apply in these cases. For a complete list of state vaccine mandate rules, KFF.org (a nonpartisan, reliable site) is great, non-partisan resource – https://www.kff.org/report-section/state-covid-19-data-and-policy-actions-policy-actions/ Additionally, the National Council of State Legislators (NCSL) is a great resource for state legislations – https://www.ncsl.org/research/health/state-action-on-coronavirus-covid-19.aspx.
Articles can be expected in the near future that will fully analyze what all of the latest developments mean for employers. The important take-away is: get your vaccination policy and necessary details started. Better yet, completed. It is typical to have some implementation timeframe offered by regulators. In light of the stop-and-go of these rules, we can expect leniency in the beginning. But adhere to a good faith adherence to the rule when deciding to take a riskier approach in delaying implementation awaiting the outcome of the court challenge, should you choose that approach. The law is such that you should comply by February 9th but show good faith progress at implementation by January 4th. Next step: what will the Supreme Court do? Will a court challenge next head there? Likely. Will the U.S. Supreme Court hear the case? Likely. Will the case decide in favor of the private employer vaccine mandate? If I knew, I’d be in Las Vegas. It is common to guess that Trump-appointed justices will vote against a vaccine mandate. But that wouldn’t be fair either. So for now, the OSHA vaccine mandate is now back on. Unless and until the next court decision decides otherwise. At which time, Leavitt Group will let you know as your Trusted Advisor.
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