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This is part of a series of articles by Wright Lindsey Jennings’ labor and employment team examining key trends for employers and the workplace in 2022, authored by attorney Shelby Howlett. The series was featured in Arkansas Business.
The Biden administration in 2021 announced a series of efforts to increase COVID-19 vaccinations among the country’s workforce.
In September, President Biden released an Executive Order imposing a vaccine mandate on federal workers and federal contractor/subcontractors. In the same month, President Biden directed the Department of Labor and the Occupational Safety and Health Administration (OSHA) to draft an Emergency Temporary Standard (ETS) that would require private employers with 100 or more workers to require their employees to either get vaccinated or submit to weekly COVID-19 testing.
Most recently, the Center for Medicare & Medicaid Services (CMS) announced a vaccine mandate for most healthcare workers.
As expected, all of the policies have faced numerous legal challenges in federal courts. All three of the federal government’s vaccine mandate policies were blocked, at least temporarily, from enforcement by federal courts.
On Nov. 6, the 5th Circuit ordered that OSHA halt enforcement of the ETS. On Nov. 23, OSHA filed an emergency motion requesting that the 5th Circuit’s stay be dissolved or modified by the 6th Circuit. The 6th Circuit on Dec. 17 dissolved the stay, allowing OSHA to once again implement the rule.
On Nov. 29, a U.S. District Court in Missouri issued an injunction of the CMS mandate in 10 states, including Arkansas. The next day, a U.S. District Court in Louisiana issued a separate injunction against the CMS mandate that applied to the rest of the nation. But the 5th Circuit in New Orleans ruled Dec. 15 that the injunction should not have been applied nationwide, and instead should’ve only applied to 14 states that sued over the mandate.
The Missouri injunction remains in place. The U.S. Supreme Court is set to hear oral arguments on the mandate Jan. 7.
On Dec. 7, a U.S. District Court in Georgia issued a preliminary injunction preventing the government from enforcing the vaccine mandate for federal contractors and subcontractors effective immediately. The vaccine mandate for federal employees, which went into effect Nov. 22, is still standing, but the administration has said that those who did not comply will not be punished. “The goal of the federal employee vaccination requirement is to protect federal workers, not to punish them,” Office of Personnel Management and Office of Management and Budget leaders wrote to executive agencies.
The flurry of legal challenges, and subsequent temporary injunctions, has left many employers wondering what to do. First, employers covered by any of the mandates should closely monitor the court actions and any announcements by federal government agencies responding to the injunctions.
Covered employers should also continue preparing for enforcement of any mandate that could apply to them despite the temporary injunctions. The injunctions could be reversed, and it is unclear whether the agencies tasked with enforcing the mandates will extend the existing timeframes for compliance if they do go into effect. Companies should have policies and plans for implementation in place, just in case the mandates are deemed enforceable.
Companies are also free to comply voluntarily with the vaccine mandates, subject to state law. The Arkansas legislature passed a statute that allows an employee to avoid providing proof of vaccination if the employee either submits for weekly COVID-19 testing or shows proof of natural immunity due to recently testing positive for COVID-19. The statute goes into effect Jan. 13, and any employers who implement a testing or vaccine mandate while the federal vaccine mandates is stayed should follow the Arkansas statute and allow an employee to show proof of natural immunity.
Although the enforceability of the vaccine mandates is still up in the air, employers will be best served by preparing as though the mandates will go into effect. And that includes communicating with employees about the requirements of the vaccine mandate policies and the status of the court challenges. By doing so, employers will avoid scrambling to establish and communicate a policy should compliance with the mandates be required.