Updated January 14, 2022: On January 13, the Supreme Court re-imposed the stay on OSHA’s COVID-19 ETS for 100+ employees. In contrast with the decision about the ETS, the Supreme Court lifted the injunction on enforcement of the CMS vaccination mandate. 

Updated December 20, 2021: On December 17, the Sixth Circuit removed the stay on OSHA’s ETS for 100+ employees. The original deadlines remain in place (see the Alert from Nov. 8, 2021); however, OSHA has stated that it will exercise “enforcement discretion” regarding employers’ compliance with requirements under the ETS. As long as employers are exercising “reasonable, good faith efforts to come into compliance,” OSHA will not issue any citations before January 10 for most of the deadlines, such as developing a written policy and implementing masking rules, and February 9 for testing requirements. Notably, a number of plaintiffs immediately appealed the ruling to the Supreme Court, which might issue another stay pending its review. 

On December 15, the Fifth Circuit narrowed the stay of the CMS mandate. CMS is now permitted to enforce its rules in some states, but has not yet indicated whether (or when) it will begin doing so. 

Original Article:

Are you frustrated with the apparent ping-pong match underway with employers’ COVID-19 vaccination policies? One day, you are required to impose a vaccination mandate, and the next day you aren’t—or you may not even be allowed to do so in some states. 

You can’t control litigation over vaccine mandates. You can’t control new legislation popping up across the country on vaccination policies. You can’t control the spread of Omicron, the new COVID-19 variant. But you can take control of your company’s vaccination and COVID-19 protection plans in a proactive, responsive way that will help protect your company now as well as prepare you for the future. This Alert briefly reviews the current status, then focuses on what you can control going forward. 

Current Status

Many employers immediately embraced the difficult and thorny issues of mandatory vaccines and testing programs; however, with the patchwork of court-imposed temporary injunctions, it can be difficult to determine what is required, suggested, and best for the business. Dentons’ US Employment and Labor team is closely tracking and monitoring developments across the nation. Here is where the mandates stand today:

• OSHA ETS: Stayed. The Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) for covered employers with 100+ employees. This ETS was not a mandate—employers had the choice of either imposing a vaccination requirement or setting up a vaccination-or-test-and-mask program. The ETS was stayed nationwide. Litigation is pending in the Sixth Circuit, where briefing closes on December 10. 
• CMS’s vaccination mandate: Stayed. The Centers for Medicare & Medicaid Services (“CMS”) issued vaccination requirements for covered providers. The policy was stayed nationwide after rulings from two district courts.
• Federal contractor mandate: Blocked nationwide. On December 7, a district court in Georgia enjoined enforcement of the rules for federal contractors and subcontractors.
• Mandates in other jurisdictions: Ongoing and developing. The federal landscape does not necessarily affect state and local requirements, such as California’s mandate for certain healthcare workers and New York City’s mandate for private businesses.
• Mandate limitations: Ongoing and developing. Some states are implementing restrictions on vaccination mandates, including Florida’s law, which requires employers to provide five types of exemptions to any vaccination requirements, and Tennessee’s legislation, which does not permit employers to ask for proof of vaccination if the employee objects to receiving a COVID-19 vaccine “for any reason.” Some of these anti-mandate state laws may be fully or partially preempted by federal laws, but navigating conflicting federal law and state law becomes even more complex if the federal requirements are stayed or nullified by the courts.
• Employer’s choice: Many employers have voluntarily chosen to enact mandatory vaccine policies. 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.

COVID-19 policies encompass more than just vaccinations. Other programs and guidance relevant to employers include:

• OSHA guidance: OSHA stands by its previously issued guidance that strongly recommends vaccinations and advises “implementing multiple layers of controls (e.g. mask wearing, distancing, and increased ventilation).”
• Other federal initiatives: The Biden Administration recently announced other initiatives, including promotion of boosters for adults and assistance with access to at-home testing.
• State programs: Some states with OSHA-approved state plans have implemented their own COVID-specific policies, such as Virginia’s permanent COVID workplace standard and Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards.

Taking control

With these conflicting messages, the best advice is to control what can be controlled in these changing times. For COVID-19 mitigation and employee safety, this means enacting a policy. That policy will be updated and subject to change (because everything changes with COVID-19), but a clearly drafted policy helps control your company’s direction and operates as a clear message to your employees, who are stuck in the middle too. Keep the following considerations in mind when developing a policy and implementing appropriate measures.

• Understand your context. Recognize jurisdictional differences. Pay attention to industry context and specific rules or guidance applicable to your workplace. Take into account site-specific considerations, such as the prevalence of remote work and the COVID transmission rate in your community.
• Be prepared for change. Anticipate what might happen if injunctions are lifted. Keep an eye on relevant deadlines and how litigation affects those dates. 
• Gather information (with limitations). If you might need to have a vaccination mandate, or a vaccinate-or-test-and-mask program, then a proactive approach to collect proof of vaccination from employees might be best—unless there are limitations such as in Tennessee. Confirm you know the locations of remote employees so that you are ready to address jurisdiction-specific issues. Research options for implementing a testing program.
• Prepare your team. If you have been given breathing room in the development of a mandate, use this time to identify key players and provide training. Ensure that the team processing accommodation requests understands the legal structure governing exemptions based on medical/disability reasons and sincerely held religious beliefs. 
• Pay attention to privacy and confidentiality rules. Verify that you are following relevant privacy and confidentiality rules about vaccination records, testing, and workplace exposures. If you are considering the use of an outside vendor for some programs, make sure the vendor will manage data properly under the rules in the state(s) where you have employees. 
• Promote vaccination on a voluntary basis, and consider an “employer’s choice” mandatory policy. Encourage vaccinations and emphasize the importance of boosters. Consider incentives to vaccinations, grounded in an understanding of what is legally permissible. Analyze the benefits of imposing a mandate even if not required to do so. Many employers have chosen this route in order to protect against the risks of an unvaccinated workforce, including labor force disruptions caused by COVID-related illnesses and quarantines, health care costs resulting from COVID-19 cases, reputational risks if there is an outbreak at the workplace, and the potential for OSHA investigations because of inadequate control measures.
• Focus on other control measures. Vaccinations are crucial, but there are other important steps as well. Review control measures such as masking, improved ventilation, and physical distancing. Even without the ETS, OSHA could still cite employers for 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. 
• Review your reporting and anti-retaliation policies and training. Plan proactively so you are ready for complaints. Do your employees know whom to talk to if they have concerns about safety measures in the workplace, and do they feel comfortable raising those concerns? Are managers trained to handle safety complaints properly? Understand in advance what is involved with an OSHA investigation, including one based on a whistleblower complaint. 

Dentons’ Employment and Labor team stays up-to-date with the laws impacting your business. Please reach out to one of the contacts listed on this alert for further guidance and to make a plan for your business.