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December 3, 2021
December 31, 2021
by Kevin Griffith, Esq., & Mike Short, Esq., Littler Mendelson P.C.
On Sept. 9, President Biden announced his COVID-19 Action Plan, calling upon the Occupational Safety and Health Administration to promulgate an Emergency Temporary Standard addressing vaccinations. On Nov. 4, OSHA released an ETS that requires employers of 100 or more employees to implement policies requiring vaccination of their employees, with accommodation for qualifying medical/religious reasons. For employees who are not fully vaccinated, employers are required to oversee weekly testing and administer additional safety measures. The ETS also preempted any conflicting state vaccination laws.
The ETS became effective on Nov. 5. But, one day later, the U.S. Court of Appeals for the Fifth Circuit (in Texas) issued a temporary stay of the ETS. The court extended the stay in a decision published on Nov. 12. Thereafter, OSHA announced it was suspending any further implementation or enforcement of the ETS while the court action is pending. This lawsuit, and numerous other cases filed in various federal circuits, have been consolidated and transferred to the Sixth Circuit (in Ohio) for final adjudication. The timing of a final decision appears to be weeks away.
Employers who are qualifying federal contractors, or receive funds from the Centers for Medicaid and Medicare Services, have separate federal vaccination requirements for employees. These mandates essentially require most employees to become fully vaccinated unless they can establish a disability or religious accommodation. Lawsuits have been filed challenging these mandates, and it remains unclear whether these laws will survive judicial review.
To add to the uncertainty at the federal level, numerous states have pushed back against the ETS by passing their own laws that, for example, create additional exemptions for employees to contest mandatory vaccination requirements. These states include Texas, Florida, Tennessee, Utah, Wyoming, North Dakota, Iowa and Montana. Florida’s law has some of the broadest exemptions, including: medical reasons, including for pregnancy or anticipated pregnancy; “religious reasons,” which appears to be broader than a “sincerely held religious belief” under federal law; and COVID-19 immunity, among others.
These various federal and state laws have made it nearly impossible for employers to implement a “one-size fits all” policy. As these lawsuits and state legislative efforts continue to proliferate and become increasingly complex by the day, businesses with employees in states that have already implemented a mandatory vaccination policy (or that are considering doing so) should evaluate the effect of these laws and consult with legal counsel to ensure compliance. Compliance with federal mandates (particularly the federal contractor and CMS mandates), along with new and arguably conflicting state laws, puts employers in a difficult position. Navigating potentially incompatible obligations will require employers to review their options and evaluate their risks. Unfortunately, employers in many situations currently are stuck between a rock and a hard place while the COVID-19 pandemic continues.