There have been recent developments in the three areas of the federal vaccine mandates.
(1) The executive order mandating vaccines for all federal employees and contractors
Updated guidance for federal contractors issued by the Department of Labor on November 10 clarified that covered contractor employees must be fully vaccinated by January 18, 2022. The guidance can be found at guidance.
(2) The executive order mandating vaccines for health care workers in certain settings that receive Medicare or Medicaid reimbursement
Eleven states have filed suit challenging the Centers for Medicare & Medicaid Services' (CMS') COVID-19 vaccine directive for health care workers. The CMS interim final rule requires covered employees to be fully vaccinated against COVID-19 by January 18, 2022, or to have received an approved religious or medical exemption or deferral by January 4, 2022. The CMS interim final rule can be found at interim final rule.
(3) The OSHA regulations concerning mandatory vaccines or testing for employers with at least 100 employees
Lawsuits challenging OSHA’s authority to issue the emergency temporary standards have been filed in almost all of the federal circuits in the USA. The 5th Circuit has temporarily suspended the rule while it considers a challenge. Because of the lawsuits pending in the other federal circuits, a judicial panel has consolidated the cases and randomly selected the 6th Circuit to hear the challenge. OSHA has the authority to issue emergency temporary standards only if it can show both of the following factors:
- Employees are exposed to grave danger from the hazard.
- The ETS is necessary to protect employees from that danger.
The OSHA issue will likely be decided ultimately by the U.S. Supreme Court, but it is not certain when we can expect that decision. In the meantime, OSHA has suspended its implementation and enforcement of the rule pending the litigation.
John Falcone and Luke Malloy handle employment law matters at PLDR Law. Feel free to contact us if you have questions about this matter.