Biden Administration Withdraws OSHA's Covid-19 Vaccination-or-Testing Requirement
On January 25, 2022, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) announced that, effective January 26, 2022, it was withdrawing its mandatory vaccination-or-weekly-testing Emergency Temporary Standard (ETS) which took effect November 5, 2021.
This announcement followed the U.S. Supreme Court's 6-3 decision on January 13, 2022,1 halting OSHA's enforcement of its ETS. The ETS would have required employers with 100 or more employees, for the next six months, to implement a policy mandating either vaccination or weekly testing for Covid-19 and face coverings in the workplace for all covered workers.
The Supreme Court concluded that the challengers would likely prevail on the merits, thereby effectively dooming any chance of success for OSHA's ETS in the pending litigation before the U.S. Court of Appeals for the Sixth Circuit (which had previously lifted the stay that had been imposed against OSHA's ETS).
In light of its withdrawal of the ETS vaccination-or-testing requirement, OSHA moved to dismiss the pending petitions before the U.S. Court of Appeals for the Sixth Circuit. And on February 18, 2022, the Sixth Circuit granted the motion to dismiss the case, as moot.
Nonetheless, OSHA has stated that it continues to strongly encourage workers to get vaccinated against Covid-19 and has indicated that it will focus its resources on finalizing a permanent Covid-19 standard for the healthcare industry, expected to be published between June and September 2022.
Mandatory Vaccination Rule Remains in Effect for Workers at Facilities Receiving Medicare/Medicaid
On January 13, 2022, in a companion case to the challenges to OSHA's ETS, the U.S. Supreme Court lifted the stay of enforcement of the vaccine mandate of the Centers for Medicare and Medicaid Services (CMS), ruling that mandating Covid-19 vaccination is within the U.S. Secretary of Health and Human Services' ambit. Specifically, the Court held that Congress had authorized the Secretary "to impose conditions on the receipt of Medicaid and Medicare funds that the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services."
The Supreme Court determined that CMS had reasonably concluded that a Covid-19 vaccine mandate was necessary to protect patient health and safety because "Covid-19 is a highly contagious, dangerous – and especially for Medicare and Medicaid patients – deadly disease." The Court concluded that CMS had the authority to impose a mandatory vaccination requirement on all employees working at facilities receiving Medicare or Medicaid funding. As per the Court's January 13 decision, CMS can proceed to implement its rule requiring all healthcare workers at Medicare and Medicaid certified providers and suppliers to get vaccinated against Covid-19. Most covered workers, except those in 24 states noted below2 or in Texas3, had to be vaccinated against Covid-19 by January 27 and February 28, 2022, respectively.
The CMS rule covers all workers (including, but not limited to, facility employees, licensed practitioners, home healthcare workers, hospice, students, trainees and volunteers) at covered facilities (even those not providing patient care or clinical services). Unlike OSHA's former ETS vaccination rule, there is no Covid-19 testing option. All workers must be vaccinated unless they are seeking an exemption for medical reasons or sincerely held religious beliefs. Employers must include a process for workers to request an exemption for medical or religious reasons in accordance with applicable federal law.
Fate of Federal Contractor Vaccine Order Uncertain
Currently, there is a nationwide preliminary injunction (imposed by multiple federal courts), staying President Biden's Executive Order which mandated Covid-19 vaccination for federal contractors. Legal challenges to the federal contractor rule have argued that President Biden exceeded his legal authority in issuing the vaccine mandate. The Biden administration has been unsuccessful, to date, in overcoming those challenges.
On January 6, 2022, the U.S. Court of Appeals for the Sixth Circuit, in a 2-1 decision, ruled against the Biden administration, deciding that the federal Procurement Act may not be used to implement public health edicts. On January 21, 2022, a federal judge in the U.S. District Court for the Southern District of Texas, Galveston Division, issued a preliminary injunction, staying the federal contractor mandate nationwide, on the grounds that those challenging the law are likely to succeed on the merits. Another challenge brought by the State of Georgia is pending before the Eleventh Circuit Court of Appeals and oral argument will be heard April 9, 2022.
What Employers Should Expect
Despite the defeats faced by OSHA and the Biden administration in court, employers should expect to see the U.S. Department of Labor (USDOL) and OSHA actively enforcing workplace safety/health rules related to Covid-19 and issuing penalties against employers.
OSHA has stated that: 1) it is not withdrawing the ETS as a proposed rule; 2) it intends to focus on finalizing a permanent Covid-19 Healthcare Standard; 3) it intends to enforce its Covid-19 National Emphasis Program (which targets enforcement on higher-hazard industries or establishments with respect to transmission of Covid-19); and 4) it intends to enforce the federal OSH Act's General Duty Clause which requires employers to provide employees with a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm."
Perhaps not surprisingly, worker whistleblower complaints filed with OSHA relating to Covid-19 have skyrocketed during the pandemic. According to OSHA's whistleblower complaint website, as of February 13, 2022, 6,517 whistleblower complaints had been filed (this does not include complaints filed with state OSHAs) as compared with 733 complaints filed as of April 21, 2020. As of February 13, 2022, OSHA has issued penalties of more than $4 million due to Covid-related violations by employers.
The American Rescue Plan Act provided $200 million in supplemental funding to the USDOL to engage in worker protection activities through 2023, $100 million of which may be used to hire more OSHA compliance officers. Employers should expect to see continued enforcement by the USDOL of the OSH Act's requirements.
What Should Employers Do Now?
As the wave of the Omicron variant continues to recede and Governors around the U.S. start loosening or removing mask mandates, employers may face questions about the need for continued face coverings and vaccination against Covid-19. Employers would be well-advised to stay abreast of the rapidly-evolving safety and health requirements and Covid-19 prevalence in each of the states and localities in which they have workers, and act accordingly.
To minimize the risk of employee complaints or unionization efforts, employers should consider:
- Updating safety and health policies and protocols in conformance with federal, state and/or local guidelines or directives;
- Implementing a process for employees to request exemption from vaccine mandates because of medical conditions, sincerely held religious beliefs, or other legal categories requiring reasonable accommodation, and for documenting the accommodation process and accommodation determination;
- Complying with CMS's mandatory vaccination requirement for workers at facilities receiving Medicare or Medicaid funding;
- For federal contractors, continuing to monitor the outcome of pending litigation regarding the mandatory vaccination requirement which has currently been halted due to a court-issued nationwide injunction.
1. The Supreme Court had ruled that while the Occupational Safety and Health Act of 1970, 29 U.S.C. §15 et seq. ("OSH Act"), allows OSHA "to set workplace safety standards," OSHA did not have the authority to implement "broad public health measures," and that Covid-19 is not a workplace risk, but rather, a "universal risk" no different from other day-to-day dangers like "crime, air pollution, or any number of communicable diseases."
2. Covered workers in the following 24 states had until February 14, 2022 to receive their first Covid-19 vaccine dose and must complete the vaccine series by March 15, 2022: 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, Utah, West Virginia, and Wyoming.
3. Following the dismissal of a legal challenge in Texas to the CMS rule on January 19, 2022, CMS has extended the deadline for covered workers in Texas to receive their first shot of the Covid-19 vaccine to February 22, 2022 and to March 21, 2022 to complete the series.
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