President Biden’s vaccine mandates have faced a roller-coaster ride in the federal court system over the last few weeks, leaving covered employers in the difficult position of trying to comply with on-again, off-again federal regulations and enforcement deadlines on the horizon.
Here is where each of the three vaccine mandates stand as of December 21, 2021.
President Biden’s vax-or-test mandate is back for now. Shortly after the U.S. Court of Appeals for the Sixth Circuit announced it was lifting the Fifth Circuit’s stay of the OSHA ETS late Friday night (December 17), OSHA posted new compliance deadlines. Employers with 100+ employees who are exercising reasonable, good faith efforts to come into compliance with the standard will not face citations for any noncompliance prior to January 10, 2022. For the testing requirement, employers will have until February 9, 2022. An appeal was filed with the U.S. Supreme Court over the weekend. Covered employers should continue or resume making internal preparations to comply in the event the ETS survives the U.S. Supreme Court.
Nearly half the states have so-called “state plans” and will have some extra time to comply (find out if you’re operating in one here: https://www.osha.gov/stateplans/statestandards). This is because extra time is procedurally built into the state planning process, even though exactly how much time any given state plan’s employers have will vary. In every state plan state, regulators have 30 days after OSHA adopts a rule to adopt one that is “at least as effective” as the federal one. For example, the federal OSHA Healthcare ETS (relating to workplace safety—different from the Centers for Medicare & Medicaid (CMS) Interim Rule mandating vaccines for healthcare workers) was effective on June 21, 2021 and had compliance deadlines of July 5 and 21. Yet, when Virginia OSHA adopted it in part it was effective in the commonwealth on August 2 and had compliance deadlines of August 17 and September 1. In addition, some states who adopt the rule (assuming it survives SCOTUS) may give extra time to their employers even after they adopt the ETS, likely the 35 days that federal OSHA gave non-state plan state employers.
The upshot is that the vaccine mandate for employers with more than 100 employees has been reinstated for now, but its fate is in the hands of the U.S. Supreme Court. In the meantime, covered employers should start to prepare for a compliance deadline that will be as early as January 10, but later in certain states like Virginia that have a state-based occupational safety and health plan.
- Healthcare worker mandate.
Earlier in the week, the Fifth Circuit made news when it partially lifted a Louisiana District Court’s nationwide stay on the CMS vaccine mandate for healthcare workers. For now, the only employers remaining subject to a stay on the CMS Interim Rule are those in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, Wyoming, Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio. Healthcare employers should pay attention to the CMS website for a response, and possibly an update to compliance deadlines. As of the date of this publication, the CMS’ most recent statement on the mandate was that it was suspending enforcement of it pending future developments in the litigation. That statement was made before the mandate was partially reinstated, so we anticipate a statement from the CMS soon that will hopefully provide clarity for covered employers.
- Federal contractor mandate.
This mandate has been stayed nationwide since a federal judge enjoined it in early December. Employers will have to stay tuned, though many have taken matters into their own hands.
In addition to the three mandates, COVID-19 as a disability is still very much top of mind. In July 2021, the Department of Justice (DOJ) and the Department of Health and Human Services (HHS) issued guidance pertaining to “long-COVID”—relying on the CDC’s definition of the condition: “a wide range of new, returning, or ongoing health problems people can experience four or more weeks after first being infected with the virus that causes COVID-19.” Guidance from EEOC is more expansive, however, because it covers not only those relatively rare cases of enduring, post-COVID-19 illnesses addressed in the DOJ/HHS “long-COVID” guidance, but also any employee’s case of COVID-19 where a major life activity is substantially limited, no matter if their condition meets the CDC’s definition of “long-COVID”.
When you learn an employee has COVID-19, you may need to engage in the interactive process and consider accommodations like schedule changes, physical modifications to the workplace, telework, or special or modified equipment. Based on the interactive process, you may narrow the types of accommodations an employee could need based on symptoms. It’s always a good idea to consult the Job Accommodation Network for ideas. Here are JAN’s suggestions if your employee needs accommodation for breathing issues: https://askjan.org/limitations/Respiratory-Distress-Breathing-Problem.cfm.
The only certainty with COVID-19 vaccine mandates at this point is change. Employers should continue monitoring the news. It is very likely the U. S. Supreme Court will weigh in on all three of the vaccine mandates, and unless and until that happens, employers will left in a difficult limbo of preparing to comply with federal mandates that may or may not ultimately go into effect.