The U.S. Supreme Court, in a 6-3 decision, has again stayed Occupational Safety and Health Administration’s (OSHA) attempt at enforcing its COVID-19 Vaccine and Testing Emergency Temporary Standard (ETS), which OSHA first published on November 5, 2021. This matter will now return to the U.S. Court of Appeals for the Sixth Circuit for further proceedings. But, for now, large employers across the nation are relieved of OSHA’s January 10 and February 9 compliance deadlines.
Over the past two years, the pandemic has forced employers to navigate in unchartered waters. The focus on health and safety, managing a remote workforce, and staying abreast of the ever-changing COVID-19-related legislation and guidance has left in-house counsel and human resources professionals with little time to focus on many of the fundamental steps that are essential to proactively and successfully managing employee issues. While the challenges associated with COVID-19 remain at the forefront of employers’ concerns, it is time to return to familiar waters and revisit some of the best HR-related practices.
Join us for the first of a three-part virtual seminar in which Bass, Berry & Sims labor & employment attorneys will address best practices across a range of topics that continue to impact day-to-day operations in the workplace and cause potential risk exposure for employers.
On January 7, the Supreme Court heard an oral argument regarding the applications for an emergency stay of the Occupational Safety and Health Administration (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) as well as the regulations issued by the Centers for Medicare & Medicaid Services. As we recently reported here, pending a ruling to the contrary by the Supreme Court, the ETS is currently in effect in the 29 states operating without a state-run OSHA Plan.
The Centers for Medicare & Medicaid Services (CMS) announced it will enforce the COVID-19 Health Care Staff Vaccination Interim Final Rule in the 25 states, District of Columbia, and territories in which the healthcare vaccine rule has not been enjoined by a court. Medicare or Medicaid providers or suppliers in the following states are required to comply with the CMS vaccinate mandate: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington and Wisconsin.
Enforcement will be made along a modified timeline. The new deadline for Phase 1 implementation (first dose or one-dose vaccine, unless there is an approved disability or religious accommodation) is January 27, 2022. The deadline for Phase 2 implementation (full vaccination, unless there is an approved disability or religious accommodation) is February 28, 2022. Interim Final Rule and CMS guidance can be found here. Surveyors will begin surveying for compliance with the vaccine requirement beginning January 27, 2022.
Medicare- and Medicaid-certified providers and suppliers in the following states are not required to undertake any efforts to implement or enforce the CMS vaccination mandate at this time due to ongoing litigation enjoining enforcement: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.
If you have any questions about this latest development related to the vaccine mandate, please contact the author.
UPDATE: The U.S. Supreme Court has announced it will hold a special session on January 7, 2022 and will hear oral argument on the legal challenges to the OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard as well as the regulations issued by the Centers for Medicare & Medicaid Services requiring vaccination for certain healthcare staff. We will provide additional updates as they become available.
The U.S. Court of Appeals for the Sixth Circuit has dissolved the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).
In a 2-1 decision issued on December 17, the Sixth Circuit determined that OSHA did not exceed its authority in issuing the ETS, concluding that “[l]ongstanding precedent addressing the plain language of the ACT, OSHA’s interpretation of the statute, and examples of direct Congressional authorization following the enactment of the OSH Act all show that OSHA’s authority includes protection against infectious diseases that present a significant risk in the workplace, without regard to exposure to that same hazard in some form outside the workplace.”
The Sixth Circuit went on to conclude that the plaintiffs could not show irreparable harm in light of COVID-19 still posing an emergency demonstrated by a recent rapid increase in COVID-19 infections and the emergence of the delta and omicron variants, and ultimately that the plaintiffs could not establish a likelihood of success on the merits warranting the Fifth Circuit’s stay. Continue Reading Sixth Circuit Dissolves Stay of OSHA ETS Requiring Vaccination and Testing for Large Employers
On December 6, we noted on this blog post that because the injunction issued by the District Court for the Eastern District of Kentucky on November 30 prohibiting the government from enforcing the government contractor vaccine mandate against contractors and subcontractors in Kentucky, Ohio, and Tennessee had national impact, a nationwide injunction seemed to make sense.
Today, the District Court for the Middle District of Georgia, which held a hearing on a motion for a preliminary injunction on December 3, did just that.
The President Likely Exceeded Statutory Authority
The order granted the motion for a preliminary injunction filed by the plaintiffs – Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia – finding that they “will likely succeed in their claim that the President exceeded the authorization given to him by Congress through the Federal Property and Administrative Services Act (FPASA) when issuing Executive Order [EO] 14042.”
The order also granted in part the Associated Builders and Contractors, Inc.’s (ABC) motion to intervene (the court held that ABC’s Georgia chapter, which had also sought to intervene, had not presented evidence that “any specific member of that chapter would have standing”) and granted ABC’s motion for a preliminary injunction.
As we previously reported, on November 30, the District Court for the Eastern District of Kentucky (ED of KY) enjoined the government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in Kentucky, Ohio, and Tennessee.” This follows nationwide injunctions of both the OSHA vaccine and testing Emergency Temporary Standard applicable to employers with 100 or more employees and the CMS interim final rule mandating vaccinations applicable to Medicare- and Medicaid-certified providers and suppliers.
As expected, on December 3, the Department of Justice (DOJ) asked the ED of KY for an immediate stay of the injunction and filed a notice of appeal to the Sixth Circuit. The plaintiffs have asked for three business days to respond, and it is unclear when the ED of KY will act on DOJ’s request. But the ED of KY case may be overtaken by other events, as preliminary injunction hearings in additional challenges to the government contractor vaccine mandate occurred on December 3 in two cases and are expected to happen on December 6 and 7 in two others.
Limited or Nationwide Injunction?
In the past few years, several commentators have questioned the conditions, if any, under which district courts may issue nationwide injunctions. While this is a very complex issue that brings into question the rights of the parties in a particular case, those in favor of limiting injunctions to the plaintiffs in the case generally favor having multiple district courts consider an issue so that the legal arguments are better developed before consideration by the appellate courts. Those in favor of nationwide injunctions believe that consistency is favorable, any district court is authorized to enjoin any executive branch action that it determines to be unlawful, and the government’s ability to appeal an injunction provides sufficient protection against improperly issued injunctions.
On November 30, the District Court for the Eastern District of Kentucky enjoined the government contractor vaccine mandate issued in accordance with President Biden’s Executive Order 14042. This injunction follows an injunction issued on November 29 of the CMS vaccine mandate and the earlier injunction of the OSHA Emergency Temporary Standard by the Fifth Circuit.
The opinion, which is available here, holds that the litigants – which included Kentucky, Tennessee, and Ohio – have a substantial likelihood of succeeding on the argument that the vaccine mandate exceeds the president’s statutory authority under the Federal Property and Administrative Services Act and the Competition in Contracting Act. The court also found that the administration likely violated the non-delegation doctrine by exercising statutory authority “it does not have,” and that the mandate improperly intrudes on health and safety matters reserved to the states under the 10th Amendment.
On September 9, the Biden Administration announced “The Path Out of the Pandemic;” a new COVID-19 strategy with direct impact on employers and workplace procedures. Join us for a virtual seminar in which the firm’s labor & employment attorneys will discuss recent federal action related to COVID-19 vaccine mandates and subsequent guidance from government agencies.
In this session, we will provide guidance for navigating the ever-evolving challenges facing employers, including:
- Impact of New COVID-19 Action Plan.
- Related Occupational Safety and Health Administration (OSHA) Rules.
- The Centers for Medicare & Medicaid Services (CMS) Requirements.
- Bargaining Obligations for Unionized Employers.
- Practical Considerations for Employers.
Please join us Thursday, November, 18 from 10:00 a.m. – 11:30 a.m. CT | 11:00 a.m. – 12:30 p.m. ET for this informative discussion. To register, please click here.
Who Should Attend
- In-house legal counsel.
- Human resources professionals.
- C-level executives, consultants and principals in companies that are working to bring employees back to the workplace.
This program is pending approval for 1.5 hours General Tennessee CLE credit. Please provide your BPR number upon registration in order for Bass, Berry & Sims to report your participation to the Tennessee CLE Commission.
Other State CLE
Bass, Berry & Sims does not seek direct accreditation from states outside of Tennessee, but some states allow attorneys to earn credit through reciprocity or self-submission. Certificates of completion and other common supporting documents will be provided for use in jurisdictions outside of Tennessee.
This program is pending approval for 1.5 hours HRCI credit. Please provide the email address associated with your HRCI account upon registration in order for Bass, Berry & Sims to report your participation to HRCI.
Submit your questions for presenters upon registration or email questions to Claire Krummenacher.
The Occupational Safety and Health Administration (OSHA) has published the long-awaited Emergency Temporary Standard (ETS) as directed by President Biden in his September 9 COVID-19 Action Plan – Path Out of the Pandemic.
The ETS will take effect as soon as it is published in the Federal Register and sets forth the following two options for employers with over 100 employees:
- A mandatory vaccination policy.
- A written policy allowing employees to undergo ongoing testing and masking instead of vaccination.
Employers are required to comply with all aspects of the ETS by December 5, except for the testing program for those employers who choose to provide this option to employees. In that case, employees must either be fully vaccinated or submit proof of testing by January 4, 2022.
We break down the details below.
Which Employers Are Covered?
All employers with a total of 100 or more (full-time or part-time) employees at any time the ETS is in effect are covered. The ETS does not apply to workplaces subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or settings where an employee provides healthcare services or healthcare support services when subject to the requirements of § 1910.502.