As we detailed earlier this month, there has been a flurry of lawsuits challenging various federal vaccine mandates. Litigation around the country aims to challenge the validity of OSHA's mandatory "vax or test" rule, the CMS mandate for healthcare workers, and the mandate for federal contractors.
The Biden administration's high-profile vaccination mandate—which requires employees at companies with 100 or more workers to either be vaccinated or tested weekly—has been on hold since the 5th Circuit blocked the mandate from taking effect in a November ruling.
Late on Friday, after reviewing a consolidated series of lawsuits against the OSHA mandate, the 6th Circuit dissolved the 5th Circuit's stay and reinstated the ETS, in a surprising decision.
In rejecting the challengers' claims that the rule would impose substantial costs on employers and lead to staffing shortages, the Court noted that these concerns were "entirely speculative," and held that OSHA "demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces."
The Court further rejected a constitutional challenge and sided with the Biden administration, concluding that, with new variants emerging and case numbers rising, there is a sufficient threat that provides OSHA the authority to institute the mandate to protect workers.
So, what does this mean for employers?
Employers will need to quickly prepare to comply with the ETS by requiring employees to be fully vaccinated or to be tested weekly. The original deadline for compliance with the ETS, January 4th, is coming up immediately following the holidays. Recognizing the difficulty of this timing, however, OSHA stated that it will not issue citations for noncompliance with any of the ETS requirements prior to January 10th, and similarly will not enforce compliance with the testing requirements before February 9th, "so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard."
Although it is virtually certain the 6th Circuit's decision will be appealed to the Supreme Court, it is unclear whether the highest court will decide to consider the issue. Indeed, the highest court has rejected various opportunities to chime in on similar mandates imposed by states. Accordingly, employers should prepare now for compliance.
What about the rules for health care workers and federal contractors?
Employers should note that the 6th Circuit's recent ruling on the ETS did not impact the ongoing challenges to these separate vaccine mandates.
With respect to healthcare workers, the CMS rule will temporarily go into effect on January 4th for roughly half of the country, but has been stayed in 14 states that were parties to a lawsuit filed in Louisiana against the rule in November, due to the court's issuance of a preliminary injunction; there are 10 other states where the rule cannot go into effect due to a separate lawsuit in Missouri. Last week, the Biden administration asked the Supreme Court to allow the rule to move forward temporarily in these 24 states, but to date, there has been no resolution.
The September Executive Order requiring all federal contractors and subcontractors to be fully vaccinated similarly remains on hold. The Southern District of Georgia issued a preliminary injunction against the order in early December, blocking enforcement of the rule nationwide. On Friday, the 11th Circuit upheld this injunction, effectively blocking the rule from taking effect.
Given the uncertainty and the rapid changes in this area, employers should nonetheless have plans in place for compliance when and if these mandates are allowed to move forward. For now, employers should stay up to date on the evolving requirements, which may vary for employees in different states. For those that have already decided to institute vaccine and/or testing mandates regardless of the federal directives, there is no reason to change course (with the potential exception of employers with employees in Florida).
Lastly, with the rise in the Omicron variant, there are additional steps that employers should consider to keep their workplaces safe. These include allowing employees to work remotely (again) and reinstituting face covering requirements.
Employers with questions about any of these vaccine mandates and additional legal requirements should also reach out to their employment counsel for help with compliance.
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