The courts continue to move the vaccine mandate goalposts on employers as dozens of legal challenges work their way through the courts. The latest developments are major game changers for employers. As of the publishing of this On the Subject, the US Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) vaccine-or-test rule is enforceable nationwide, and the US Centers for Medicare & Medicaid Services (CMS) Interim Final Rule (IFR) mandating vaccination, subject to exemptions, is enforceable in 25 states.

BACKGROUND

As we previously reported, in September 2021, US President Joe Biden announced a three-part federal vaccine mandate for large employers, certain healthcare providers and federal contractors. In furtherance of that announcement, OSHA issued its ETS requiring large employers with 100+ employees to implement a vaccine-or-testing policy (or a vaccine mandate, if preferred); CMS issued an IFR requiring vaccination, subject to exemptions; and the federal government issued its guidance requiring covered federal contractors to mandate vaccination, as well.

Litigation ensued in multiple venues as to all three federal vaccine mandates, and courts issued various stays of enforcement as to each mandate, effectively staying enforcement on any federal vaccine mandate nationwide.

However, on December 15, 2021, the US Court of Appeals for the Fifth Circuit lifted the CMS IFR stay as to 25 states, and on December 17, 2021, the US Court of Appeals for the Sixth Circuit dissolved the OSHA ETS stay nationwide.

SUMMARY OF VACCINE MANDATE STATE-OF-PLAY

High-level, the following is a summary of the enforceability and deadlines on each of the three federal vaccine requirements:

• The OSHA ETS stay of enforcement has been lifted nationwide. On December 17, 2021, OSHA issued a statement confirming that it plans to enforce its ETS, but the agency will have a grace period for compliance, as follows:

  • Immediately, employers must start taking good faith steps to come into compliance with the standard.

  • January 10, 2022, is the new deadline to have a written policy, require masking for unvaccinated employees and provide PTO for employees to get vaccinated.

  • February 9, 2022, is the new deadline to require unvaccinated employees to begin testing weekly for COVID-19.

• The CMS IFR stay of enforcement has been lifted as to 25 states. CMS could begin enforcement immediately in the 25 states where the stay has been lifted. CMS has not yet issued an official statement on enforcement or timing.

• The federal contractor vaccine mandate is currently under a nationwide stay of enforcement. No enforcement is permitted at this time.

Additional details regarding each vaccine mandate are below. The legal landscape remains fluid on these rules, and impending Supreme Court of the United States appeals may change the state of play further.

VACCINE MANDATE STATE-OF-PLAY: IN DETAIL

OSHA ETS (vax-or-test mandate for large employers): 

• What is the latest development? The OSHA ETS nationwide stay was dissolved by the Sixth Circuit on December 17, 2021.

  • Previously, the Fifth Circuit originally issued a nationwide stay of enforcement on this vax-or-test rule pending resolution of the case on the merits; however, as is the procedure when there are multiple similar challenges in various circuit courts, the case was then consolidated with other similar challenges and transferred to the Sixth Circuit for further review.

• What does this mean? The dissolution of the stay means that OSHA could begin enforcement of the ETS nationwide immediately. OSHA issued a statement confirming that it plans to enforce its ETS, but the agency will permit a grace period for compliance.

  • Immediately, employers must start taking good faith steps to come into compliance with the standard.

  • January 10, 2022, is the new deadline to have a written policy, require masking for unvaccinated employees and provide PTO for employees to get vaccinated.

  • February 9, 2022, is the new deadline to require unvaccinated employees to begin testing weekly for COVID-19.

• What’s next? This decision is appealable and will likely be appealed by the ETS challengers, ultimately seeking review from the Supreme Court.

CMS IFR (vaccine mandate for specified CMS-regulated provider/supplier types):

• What is the latest development? The CMS IFR nationwide stay was lifted as to 25 states this week by the Fifth Circuit. The other 25 states remain under an enforcement stay. (The list of states with or without a stay is in the below chart; however, the list remains fluid day-to-day as courts issue piecemeal orders.)

  • Previously, the CMS IFR was originally subject to several piecemeal stays of enforcement issued by multiple courts. The Fifth Circuit order narrowed one of those courts’ broad stays, limiting it only to the plaintiff states in the litigation.

• What does this mean? The partial dissolution of the stay means that CMS could begin enforcement of its rule in the 25 states that do not currently have a stay in place (however, CMS has not announced its intention on this yet).

• What’s next? Two big-picture items to look out for:

  • More piecemeal stays may be in our future. When the Fifth Circuit partially lifted the stay on Wednesday, December 15, it was lifted as to 26 states including Texas, and a Texas court quickly implemented a statewide stay. We expect other states may follow suit in the days to come, so the state list remains fluid.

  • On the other side, CMS has asked the Supreme Court to lift the stay as to the remaining stayed states, and the Supreme Court has set a briefing schedule that has briefs due through December 30, so we do not expect a ruling on this from the Supreme Court until early 2022.

Federal Contractor Guidance (vaccine mandate for covered federal contractors and subcontractors):

• What is the latest development? The federal contractor rule remains stayed nationwide pursuant to a court order issued December 7, 2021.

• What does this mean? At this time, the federal government cannot enforce their contractor vaccine mandates.

• What’s next? Expect legal challenges to this stay by the federal government.