Supreme Court Issues Rulings on Vaccine Mandates


In response to the COVID-19 pandemic, federal and state governments have enacted several rules requiring employers to enforce certain vaccination and testing policies. Each federal rule has faced various legal challenges, making it difficult for employers to know which ones apply to them and when the applicable rules take effect. On January 13, 2022, the U.S. Supreme Court stayed the enforcement of the OSHA mandate that applied to businesses with 100 or more employees, but allowed the CMS mandate to proceed at least for now.

To complicate things even more, employers may have to consider reasonably accommodating those with certain health conditions and those with sincerely held religious beliefs for any mandates that are in effect.

The following is a summary of the laws relating to COVID-19 vaccine and testing requirements that might affect your business:

Vaccine Mandate or Related Law

Businesses Covered Requirements

Current Status as of January 13, 2022

OSHA ETS

Most private employers with 100 or more workers not covered by another federal mandate A business must require its employees to either show proof of vaccination or submit to weekly COVID-19 testing. Unvaccinated workers must also wear masks while at work. This law was scheduled to go into effect on January 10, 2022.  However, on January 13, 2022, the United States Supreme Court placed the mandate on hold.

CMS

Medicare and Medicaid-certified providers and suppliers, including hospitals, hospices, and long-term care facilities All staff must be fully vaccinated. “Staff” includes all employees, licensed practitioners, students, trainees, volunteers, and contractors regardless of location. The mandate was stayed in 24 states, including Arkansas.  On January 13, 2022, the United States Supreme Court lifted the stay.

Federal Contractors & Subcontractors

Certain businesses that contract or subcontract with the federal government All employees of covered contractors must be vaccinated. In areas of high or substantial community transmission, fully vaccinated people must wear masks in indoor settings with limited exceptions. The mandate was scheduled to go into effect on January 18, 2022.  It is currently enjoined nationwide.  The federal government has indicated it will not seek to enforce the mandate in the U.S. due to the pending litigation.

Arkansas Acts 1113 and 1115

All employers in Arkansas who mandate vaccinations Allows employees to avoid providing proof of vaccination if the employee either submits to weekly COVID-19 testing or shows proof of natural immunity due to testing positive for COVID-19 within last 6 months or proof of antibodies.  Employers are not required to pay for testing. The law went into effect on January 13, 2022.  If any federal mandate (OSHA, CMS or federal contractor) applies to an Arkansas employer, then this law is likely superseded by the federal mandate.

Arkansas Act 1002

Arkansas public employers Prohibits state government entities, including schools, from requiring masks be work in public buildings. The law was struck down as unconstitutional by Judge Tim Fox on December 29, 2021.  This law will not go back into effect unless the ruling is overturned on appeal.

 

For a printable version of this summary, click here to download a PDF version.

As always, the Labor & Employment Team at Wright Lindsey Jennings is ready to answer your questions on a variety of employment-related issues, including the types of COVID-related policies your business should have.