Vaccine Mandate Court Updates as of December 18, 2021

Health Care Sector

We have previously mentioned that the vaccine mandate on workers at most health care facilities accepting Medicare/Medicaid was temporarily blocked (first in 10 states by a federal court in Missouri, followed by a nationwide block by a federal court in Louisiana). However, an appeals court has limited the Louisiana block to only apply to the 14 states that brought the lawsuit forward. So as of December 15, 2021, the Centers for Medicare and Medicaid Services (CMS) is blocked from enforcing the mandate in 24 states:

AL, AK, AZ, AR, GA, ID, IN, IA, KS, KY, LA, MS, MO, MT, NE, NH, ND, OH, OK, SC, SD, UT, WV, WY

We also note the Supreme Court of the United States (SCOTUS) recently decided 6-3 to not block New York’s vaccine mandate in the health care sector. It was being legally challenged because the state does not allow any affected employees to even request religious accommodation.

Federal OSHA’s ETS

The Sixth US Circuit Court of Appeals did not get a majority vote to have the full court of 16 judges review the case against the Occupational Safety and Health Administration’s Emergency Temporary Standard (OSHA ETS). Chief Judge Sutton wrote a lengthy statement with a clear, concise summary of how he views this as a case of OSHA exceeding its authority:

“For my part, the resolution of this conflict between existing law and the Secretary’s proposed policy is not particularly hard… the challengers are likely to prevail on the merits when it comes to their petitions targeting the emergency rule. That reality together with the other stay factors show that the emergency rule should remain stayed” (“stayed” means it’s blocked from being enforced).

Nevertheless, the limited panel of 3 judges who have been reviewing the 34 separate lawsuits and myriad legal briefs for weeks announced late on Friday, December 17, that they’re lifting the stay nationwide. The next day on Saturday, December 18, federal OSHA announced they will extend the original December 4 and January 5 deadlines to now be January 10 and February 9 for employers demonstrating good faith efforts to comply. So employers with 100+ employees subject to federal OSHA requirements should prepare for the following requirements which we previously reviewed here in greater detail but recap below with the revised deadlines. State OSHA requirements may be stricter.

• By Monday, January 10, 2022,
  • Designate an official responsible to comply with the ETS
  • Have written policies and communications
    • Need to address outlier situations as well, such as remote workers, outdoor workers, quarantines, waived weekly testing for 90 days following a positive COVID-19 test/diagnosis, etc.
    • For those allowing a weekly testing option for the unvaccinated, consult with counsel and determine whether the employer is offering on-site testing, paying for tests and/or time taken to be tested, etc. Keep in mind the recent guidance which states an at-home test kit used for employment surveillance should be self-administered by the employee under the observation of the employer or telehealth proctor, and the employee should show the employer the results.
  • Require proof of first dose (or request for medical or religious accommodation)
  • Provide four hours paid time off per dose (including prep and travel time) not offset by other leave
  • Provide reasonable time and paid sick leave to recover from side effects
    • Up to two days per dose is generally compliant, but an employee whose symptoms keeps them out longer would remain on protected leave even if unpaid
    • May require using other accrued paid leave available for sickness, but not other paid leave solely available for vacation
  • Require prompt notification from employees of a positive test/diagnosis, and immediately remove them from the workplace until allowed to return per ETS rules
  • Require mask use of those not yet fully vaccinated
  • Comply with mandatory reporting and availability of records
• By Wednesday, February 9, 2022,
  • Require proof of second dose
    • For those allowing a weekly testing option for the unvaccinated, begin requiring weekly testing as of February 9
  • Bar entry to a worksite for an employee who does not provide proof of vaccination
    • For those allowing a weekly testing option for the unvaccinated, bar entry for an employee who does not provide proof of an acceptable negative test within the last seven days

While every effort has been taken in compiling this information to ensure that its contents are totally accurate, neither the publisher nor the author can accept  liability  for any inaccuracies or changed circumstances of any information herein or for the consequences of any reliance placed upon it. This publication is distributed on the understanding that the publisher is not engaged in rendering legal, accounting or other professional advice or services. Readers should always seek professional advice before entering into any commitments.