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What’s Next for Employee Vaccine Mandates?

January 6, 2022

Erin Roycroft - Tonkon Torp LLP

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Vaccination policy is a top concern for many employers and employees. The Biden White House has issued several rules requiring employees in a broad cross-section of industries to get vaccinated against COVID-19, but plaintiffs across the country have filed suit, leading to months of litigation, uncertainty and inconsistent enforcement. Employers and employees may soon have firm answers about their obligations under the various rules.

The emergency temporary standard

The Supreme Court has granted review in legal challenges to two White House vaccine rules. The first is the emergency temporary standard (ETS) for large employers with over 100 employees, issued by the Occupational Safety and Health Administration (OSHA). The ETS requires employers to either mandate vaccination or require unvaccinated employees to undergo weekly testing. After OSHA issued the rule, private employers, labor unions, state governments and individual employees across the country filed lawsuits in nearly every federal circuit court. The Fifth Circuit was the first to issue a decision, granting the plaintiffs a stay against the rule. The Fifth Circuit concluded that OSHA had “grossly” exceeded its authority in requiring vaccination without regard to the conditions of individual workplaces. However, this was not the end for the ETS.

Through the process of multidistrict litigation, wherein numerous lawsuits appear in numerous federal courts alleging the same injury by the same defendant, the cases were consolidated and assigned (at random) to the Sixth Circuit. The Sixth Circuit dissolved the Fifth Circuit’s stay, concluding that the ETS was a proper exercise of OSHA’s authority in light of the “pervasive danger” of COVID-19. Numerous plaintiffs then petitioned the Supreme Court to weigh in, and on December 22, the Court granted review. Oral arguments are scheduled for January 7, 2022. With the stay lifted, the ETS is back in effect unless and until the Supreme Court declares otherwise.

CMS mandate for health care employers

The Supreme Court also granted review in a similar legal challenge to a vaccine mandate imposed on health care employers by the Centers for Medicare and Medicaid Services (CMS). The CMS rule requires all employers who participate in Medicare and Medicaid programs to ensure their staff are fully vaccinated against COVID-19. Unlike the ETS, the CMS rule does not allow for a weekly testing alternative.

As with the ETS, plaintiffs immediately sued to enjoin the CMS rule from going into effect. Federal district courts in Missouri and Louisiana issued injunctions for only those states that challenged the rule in court. Those cases have been appealed to the Fifth and Eighth Circuits, but the CMS asked the Supreme Court to intervene earlier. The Court again granted review and set oral argument also for January 7. In the meantime, CMS is enjoined from enforcing the rule in about half the states. CMS has said it will refrain from enforcing the rule in the remaining states until the litigation has resolved.

Executive Order 14042

The final mandate facing judicial scrutiny is Executive Order 14042, which requires federal contractors to impose vaccine requirements on their covered workers, again without a testing alternative. A federal judge in Georgia halted enforcement of that executive order, issuing a nationwide injunction. The federal government appealed to the Eleventh Circuit, which denied its request to stay the injunction and allow enforcement while the appeal is pending, meaning the vaccine mandate for federal contractors is on hold unless and until the appeals court rules otherwise. The Eleventh Circuit has fast-tracked the case, and all briefs are due before the end of January.

All of this patchwork litigation may leave some employers scratching their heads. It’s important to note these various rules were designed to be mutually exclusive, meaning that employers subject to the federal contractor and CMS rules are exempt under the ETS. However, while the CMS and federal contractor rules are enjoined, employers with more than 100 employees that were subject to those rules may now be required to comply with the OSHA ETS.

Perhaps in recognition of the current climate of uncertainty, OSHA has said it will not issue any citations for noncompliance before January 10, 2022, and that it will not cite employers for failure to comply with the testing requirements before February 9, as long as employers are demonstrating good faith efforts to comply.

Affected employers should keep a close eye on developments from the Supreme Court and the Eleventh Circuit concerning the fate of vaccine mandates and consider preparing for the possibility that the rules become fully reinstated.

This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact Erin Roycroft, any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.

About Tonkon Torp
Tonkon Torp LLP is a leading business and litigation law firm serving public companies, substantial private enterprises, entrepreneurial businesses, and individuals throughout the Northwest. For more information, visit tonkon.com.