The legal landscape around COVID-19 policies and vaccine mandates in the workplace continues to shift under the feet of US employers. With the January 13 US Supreme Court ruling on the OSHA and CMS vaccine rules, and increasingly complex rules at the state and local level, employers are left asking – now what? Should they revert to their pre-summer 2021 positions? Should they move ahead with a national approach to vaccinate requirements, or take a more regionally focused approach? Should they pause plans to return to the workplace?

In short, there is no one-size-fits-all solution. Factors such as the nature of the business, temperament of the workforce, unique health and safety risk considerations, and geographic location all play into the answers to these questions. This reality can be frustrating for many organizations due to the myriad rules, and sometimes conflicting guidance at the federal, state, and local levels. But as business leaders, you control the message. And rather than focus on the messiness and inherent frustrations of the conflicting legal opinions and politics, there is a real opportunity in 2022 to make the employee-centered choice that creates a lasting and positive impact on your workplace. Employees want to feel safe, respected, and heard. Without uniform federal regulation, employers now have an opportunity to be the architect of their own COVID response.

Now is the time to take control and move forward with a best practices document that guides employees on vaccines, boosters, masks, other control measures, paid-time-off, quarantine, and testing. To help guide employers in that direction and plan for the future, we provide an overview of current developments in the COVID-19 workplace policy space, and key takeaways for employers as we begin a new year with the COVID-19 pandemic.

Recent Developments

• OSHA ETS: Unenforceable. On January 13, 2022, the US Supreme Court stayed the implementation of OSHA’s Emergency Temporary Standard (ETS) for employers with 100+ employees. While litigation continues, it seems unlikely OSHA will implement the ETS before it expires. OSHA has suggested it will continue to evaluate enforcement under existing whistleblower and General Duty Clause authority, where appropriate.
• CMS Rule: Enforceable. On the same day the US Supreme Court stayed the implementation of OSHA’s ETS, it allowed the Centers for Medicare and Medicaid Services (CMS) to enforce its vaccination requirements for covered health care entities. CMS issued guidance adjusting the enforcement deadlines to February 14, 2022 for a policy and the first round of the vaccine and March 15, 2022 for the second shot in a two-shot vaccine series.
• Federal contractor mandate: Unenforceable. Litigation is ongoing, though a recent Sixth Circuit Court of Appeals opinion casts ongoing doubt about its enforceability.
• Mandates in local jurisdictions: Ongoing and developing. There are state and local vaccine requirements, such as California’s mandate for certain healthcare workers and New York City’s mandate for private businesses. Whether and to what extent additional jurisdictions add mandates is an open question, especially in light of the recent ruling on the OSHA ETS.
• Mandate limitations: Ongoing and developing. Some states are implementing restrictions on vaccination mandates for both employees and customers. Previously, employers seeking to implement a vaccine mandate, but facing state-level restrictions, could rely on pre-emption by federal law if they were covered by the OSHA ETS or a federal contractor mandate. No more. Employers who have employees in states with mandate restrictions generally need to abide by those limitations (with possible exceptions, such as coverage by the CMS mandate). 
• Employer’s choice: Employers generally have the right to require COVID-19 vaccines as long as appropriate accommodations are made under applicable civil rights laws, absent a more restrictive state scheme such as the one in Florida. Also, employers need to be mindful of the requirements of any collective bargaining agreements.
• Updated CDC guidance on masking, isolation, and quarantine. The US Centers for Disease Control and Prevention (CDC) has issued a number of updates recently on masking, isolation, and quarantine rules. In late December, the CDC changed its recommendation on isolation and quarantine following a positive COVID-19 diagnosis or close contact with a COVID-19 case from 10 days to 5 (subject to certain limitations) but did not expressly require a negative test before leaving isolation. The CDC also updated its mask guidance, stating that certain types of masks such as N95’s and KN95’s offer the “highest protection.”
• Testing capacity and funding. Much has been written lately about the lack of available home tests throughout the US. This has caused a challenge for employers who have adopted a testing approach for their workforce. Further complicating matters is the patchwork of state rules relating to reimbursement requirements for testing, and the federal mandate for insurance reimbursement. The government has created a new website to provide for a limited number of tests for US residents.
• Workforce disruptions. The Omicron variant has caused a significant disruption in the labor force as many individuals have been calling in sick. Building resiliency in labor planning, and understanding the limitations of the workforce, are becoming critical strategic decisions for many organizations.

Key Takeaways

1. Keep an eye on OSHA. There is speculation that OSHA could issue industry-specific standards in light of the US Supreme Court’s decision. However, even without the ETS, OSHA’s enforcement power allows it to issue violations of the General Duty Clause (Section 5(a)(1) of the Occupational Safety and Health Act) for failing to take sufficient steps to protect the health and safety of workers. OSHA’s general guidance, which is still in effect, emphasizes the importance of vaccination but also addresses other control measures, such as increased ventilation. OSHA may leverage the impact of investigations and penalties by publicizing enforcement efforts. Watch for troubled employees and ensure anti-retaliation policies and protections are in place. Expect that employee complaints may generate increased enforcement.
2. Understand state and local requirements before moving forward. Abiding by a variety of state and local-level rules is particularly challenging for employers with employees in multiple jurisdictions. It’s critical to map these obligations on a regular basis and understand the limitations on any nationwide policies employers may want to consider.
3. Take action on your previous ETS-compliant plan. If you already drafted and issued an OSHA ETS-compliant plan, you have several choices. First, you could stick with the plan by analyzing the benefits of imposing a mandate, or a vaccinate-and-test program, even if not required to do so (as long as you are permitted to do so, given state restrictions). Second, you could transform the plan into a voluntary approach – encourage voluntary uptake of vaccinations and emphasize the importance of boosters. Consider incentives to vaccinations, grounded in an understanding of what is legally permissible.
4. Ensure your plan is up-to-date. Shifting CDC guidance means your plans from 2021 may be out-of-date. Employees are taking notice. It’s important to ensure your plan is consistently reviewed and updated to reflect the latest federal, state, and local guidance.
5. Communication is key. In these changing times, clear and consistent communication with employees is critical. Update the workforce on your return-to-office plans and any material changes to your policies. Have a clear business justification for the decisions you make. These clear communication lines will go far in mitigating your risk from a whistleblower or regulatory standpoint.

For more information about these developments, or to discuss your organization’s COVID-19 policies and plans, please reach out to one of the contacts listed in this alert.