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COVID-19 update: vaccination mandates, state actions, EEOC guidance
Important note: Information on the vaccination mandates is changing rapidly. This information is current as of December 6. Stay abreast of the breaking news. We're here to help.


Employers in limbo with stay on OSHA's vax rule

It took just one day after the release of OSHA's emergency temporary standard (ETS) mandating COVID-19 vaccinations and testing before the first lawsuit was filed and many more followed. On Nov. 12, the 5th U.S. Circuit Court of Appeals in New Orleans granted a motion to stay the ETS, temporarily halting its enforcement. The more than 30 lawsuits that were filed were consolidated and assigned by lottery to the 6th U.S. Circuit Court of Appeals in Cincinnati. The court is considered conservative with 11 of 16 active judges appointed by Republican presidents and many anticipate it will rule against the mandate.

In its filing, the government asked the court to lift the stay but said if the 5th Circuit's ruling remained, it should at least be modified to allow the masking-and-testing requirement. A modified stay could override state and local laws banning vaccines and face coverings. Should the 6th Circuit permanently enjoin the ETS, the government will have to decide whether to appeal to the U.S. Supreme Court where an adverse decision could have implications for OSHA's authority in the future.

Thus, the fate of the mandate remains unclear. As of November 30, the Sixth Circuit had not set a briefing schedule, so the time frame is difficult to predict. In the meantime, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation. It has also extended the comment period by 45 days to January 19, 2022. Small employers not affected by the rule might be wise to consider submitting comments because OSHA hasn't ruled out a future regulation that would affect smaller employers. Comments can be shared at https://www.regulations.gov/document/OSHA-2021-0007-0001.

The extension of the comment period is not connected to the effective dates for the mandate-or-testing rule or the current litigation. For now, the deadlines of Dec. 6 for masking of unvaccinated workers and the Jan. 4 deadline for vaccinations and/or testing are suspended. It's unknown if OSHA or the court will extend the deadline.

Notably, the challenges focus on OSHA's statutory authority to issue the ETS. While the court raised question about the constitutionality of the mandate, it found that COVID-19 does not rise to the type of emergency that allows for the extreme measure of an ETS. OSHA can issue an ETS and bypass the period of public notice and comment only if the agency determines that: (a) employees are "exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards;" and (b) the ETS is "necessary to protect employees from such danger."

The court found it was overly broad, focusing on all workplaces with 100 or more employees without regard to the threat of COVID-19 transmission and underinclusive in that it fails to protect vulnerable workers simply because a given employer has less than 100 employees. Further, it imposed an unreasonable financial burden on employers.

What should employers do?

Consultancy Willis Towers Watson conducted a survey of large U.S. companies from Nov. 12-18 and asked if they currently require employees to be vaccinated against COVID-19 or plan to do so. The results of the 543 responses:

Few employers (3 percent) with the vaccine mandate reported a spike in resignations, but almost one-third of those planning to require vaccinations are very concerned. Yet, 48 percent believe vaccine mandates could help recruit and retain employees.

Other actions large employers have taken or plan to take to protect employees who are returning to the workplace are:

For now, employers do not have to comply with the deadlines, but the ETS has not been struck down. The ETS places considerable administrative burdens on employers, and it is wise to do some preparation. Some employers are using "soft language" surveys and communications to assess the pulse of the employees and understand the challenges the mandate will pose. Top-level management should be having a conversation about the positions the company will take, the challenges it faces, and the operational and legal considerations.



Nationwide injunction on healthcare mandate

On November 30, a Louisiana U.S. district judge issued a nationwide injunction blocking a federal COVID-19 vaccine mandate for most health care settings, including hospitals and health systems, that participate in the Medicare and Medicaid programs. While the lawsuit was filed by 14 states, the Judge added the nationwide injunction. According to the Judge, the Biden Administration doesn't have the authority to bypass Congress in issuing such a mandate. Appeals of this decision will go the 5th Circuit court, which blocked OSHA's ETS.

The decision mirrors a preliminary injunction issued by a Missouri U.S. District Judge the day before that only covered ten states. However, also on Nov. 29, Supreme Court Justice Stephen Breyer denied a request from workers for a Massachusetts hospital system to suspend the system's COVID-19 vaccine requirement. Mass General Brigham had fired 430 workers who did not comply with the policy and the suit brought by eight current and former employees alleged the hospital failed to provide accommodations.

Several cities and states have existing mandates for healthcare workers and they remain in effect. Here is a map showing the 23 states that have mandates, and six states that ban mandates.



Federal contractor vaccine rules blocked

On November 30, a federal judge in Kentucky issued a preliminary injunction to temporarily block the vaccine mandate for all federal contractors and subcontractors in all covered contracts in Kentucky, Ohio and Tennessee. The ruling was based on the opinion the order exceeded President Biden's authority under the Federal Property and Administrative Services Act. On December 7, a Georgia court echoed this decision and expanded it nationwide.

Although this is a reprieve, it's unknown how long it will last. While litigation ensues, covered contractors that want to continue working with the federal government should plan actions to comply with the requirements of EO 14042.



State and local actions

Some states, including Alabama, Florida, Iowa, Tennessee, Texas, and West Virginia, have passed laws to ban COVID-19 vaccination requirements and/or expand exemptions for private employers. Kansas made it easy for workers to claim religious exemptions from COVID-19 vaccine requirements and promised unemployment benefits to people who are fired after refusing the shots. On the other hand, Illinois passed an amendment limiting the effect of a statute used to challenge vaccine mandates. New York City Mayor Bill de Blasio ordered all private-sector employers to implement COVID-19 vaccine mandates, which requires employees who work in person to have at least one dose of the vaccine by December 27.

Nineteen states have state worker mandates and ten ban state worker mandates. Police and firefighter unions in Chicago, Los Angeles, and New York City have filed lawsuits challenging their respective city's ordinance requiring municipal workers to get vaccinated against the coronavirus. New York's Metropolitan Transportation Authority no longer pays a $500,000 death benefit to the families of subway, bus, and commuter rail workers who die of COVID-19 if the workers were unvaccinated.



Courts generally uphold employer mandates

It's important to distinguish the OSHA vaccine mandate from employer mandates. Courts have generally upheld employer mandates. Recently, a US District Court judge in Texas refused to block a COVID-19 vaccination mandate for Southwest Airlines pilots who claimed that the collective bargaining agreement required the policy to be negotiated. Another judge from the same court upheld a United Airlines policy that requires workers to be vaccinated against COVID-19 or placed on unpaid leave if they have a medical or religious exemption. Although critical of the approach, the judge said that human resources policy was up to the company.



NLRB memo takes expansive position on collective bargaining agreements and mandatory vaccination and testing policies

In a memo issued on November 10, the General Counsel of the National Labor Relations Board (NLRB) made it clear that employers had certain bargaining obligations regarding the OSHA ETS. Although the memo acknowledged that when an employer is required by law to make changes to terms and conditions of employment, it does not an obligation to bargain, the ETS gives employers the option of mandating the vaccine and/or allowing testing and the union should be part of that decision. The memorandum also notes that employers should bargain about the effects of the ETS policy on employees, such as leave for employees who test positive for COVID-19, payment for testing, and how to treat employees that refuse to become vaccinated or submit to regular testing.

Notably, it also implies that even without the ETS unionized employers would be required to bargain if they decide to implement a mandatory vaccination or testing policy. The memorandum is not binding; however, it signals that the General Counsel may pursue charges against unionized employers who unilaterally implement mandatory vaccination and testing policies. While each case can differ, employers should review their bargaining agreements and be prepared to bargain with their unionized workforce should the ETS be approved or if they implement vaccination and testing policies.



EEOC updates COVID-19 technical assistance

The Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance to include more information about employer retaliation in pandemic-related employment situations, by adding section M. Retaliation and Interference.



Takeaway: The compliance landscape around mandates is complex, contentious, and confusing. Determine what mandates apply now and what may apply in the future. Employers can be covered by more than one mandate. Assess current policies to ensure they comply with jurisdiction requirements. Develop a plan and timeline for complying with the applicable mandates. Most importantly, stay abreast of the rapidly evolving situation and obtain information from trusted sources.