Is the COVID-19 vaccine mandate still in effect?
In November 2021, President Biden announced a new mandatory vaccination program for all U.S. businesses with 100 or more employees. The mandate required that all employees — full time and part time — receive COVID vaccinations or, alternatively, produce weekly testing to prove they did not have the virus. Employees who were 100% remote did not have to do either.
As with many things related to the COVID pandemic, understanding and implementing rules regarding the COVID virus — like this vaccination mandate — often falls on, or is led by, the legal team. Given everything on the legal department’s plate, especially legal departments serving small businesses, it is difficult to keep up with the seemingly never-ending changes regarding COVID-related mandates, best practices, and battles between state and federal officials mixing science and politics.
Lost in the shuffle here is a critical question: Is the November 2021 vaccine mandate still in effect? The answer is “no,” though it has not always been clear. Lawyers with access to Practical Law, however, have had the benefit of a constantly updated COVID-19 resource center, providing the latest information about COVID issues, along with forms, templates, checklists, policies, and more — all designed to help busy in-house lawyers navigate an unprecedented area of the law.
Understanding the basis for the COVID-19 vaccine mandate
In November 2021, President Biden announced that the Department of Labor’s Occupational Safety and Health Administration (OSHA) was using emergency powers granted by Congress under sections 4, 6(c), and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655(c), 657) to protect unvaccinated employees of large employers — those with 100 or more employees — from the risk of contracting COVID-19 by issuing an Emergency Temporary Standard (ETS).
The ETS mandated employee COVID-19 vaccinations or weekly testing in businesses with 100 or more employees. An ETS can issue when OSHA determines that there is a “grave danger” faced by workers that cannot wait for the normal notice and comment process for federal rulemaking.
See, generally, the Practical Law Health and Safety in the Workplace Toolkit
What is the status of the COVID-19 vaccine mandate?
In a 6-3 decision in January 2022, the U.S. Supreme Court struck down the vaccination mandate as exceeding OSHA’s authority. However, the Court upheld a similar regulation issued by the Centers for Medicare and Medicaid Services (CMMS) mandating vaccines for almost all employees at hospitals, nursing homes, and other health care providers that receive federal funds. Regarding the OSHA mandate, in an unsigned opinion the Court noted:
“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly; requiring the vaccination of 84 million Americans — selected simply because they work for employers with more than 100 employees — certainly falls in the latter category."
President Biden and OSHA, while disappointed in the ruling, noted that OSHA would now use the text of the ETS for a proposed rulemaking that will publish in May or June of 2022. There is also a small chance that the lower courts, which now have the case, could rule that the mandate is in fact valid, likely sending the fight back to the Supreme Court.
Smart in-house lawyers will bet on the former as far more likely than the latter. To add to the confusion, an earlier mandate issued under the Federal Property and Administrative Services Act of 1949 (Procurement Act) involving employers with federal contracts was enjoined by a Missouri District Court and a Georgia District Court and is now pending before the 8th and 11th Circuit Courts of Appeals respectively. If the injunction is overturned, employers with $250,000 or more worth of business with the federal government must ensure their employees are following federal Covid protocols, including required vaccinations.
See the Practical Law Federal Agency Policy in Response to Covid-19 Chart
Action items for in-house counsel despite ongoing uncertainty regarding the future of vaccine mandates
The unsettled nature of the mandate — including whether the CMMS mandate applies to their business or if the federal contractor mandate will come into effect — puts in-house lawyers in a tough spot. Here are a series of potential next steps:
- Employer mandates: Employers can still impose their own mandates on COVID vaccinations, masks, etc. Doing so requires a discussion amongst the company leadership and the employee base as imposing such a mandate will generate controversy, including political blowback.
- Religious and health exceptions: If you do seek to implement a private mandate, consider what you will do for religious and health objections, such as offer a negative test alternative or an option to work remotely. Contrary to popular myth, businesses are allowed to ask their employees about vaccination status if they wish.
- COVID-19/Infectious disease policy: Implement a COVID/infectious disease policy — create or put in one place how the company will deal with future pandemics and similar health issues. Your response will be smoother in the future if you put down in writing what the company will do and expectations around how employees must act.
- Local, state, federal and international requirements: Understand any local, state, or federal COVID requirements that do apply to your company. You’ll need to dig around to find the latest news on what is going on in your location. And, if you work for an international company, you must understand the requirements in foreign jurisdictions.
- Office sanitation and cleaning: As we start to migrate back into an office environment, make it inviting to your employees — keep it clean, keep masks and hand sanitizer available, and allow for sufficient spacing. While we would all like to believe the COVID pandemic is over, it’s not.
- Stay current on changing decisions: Stay alert! Court decisions and new mandates can happen at any time. Do your best to stay abreast of the latest news and think through contingency plans now. For example, if the courts reinstate one of the vaccination mandates, are you ready to move quickly? OSHA will be. Even if not under the mantle of its November 2021 mandate, OSHA still has the power to enforce a “general duty” obligation on employers to maintain a safe work environment. How this plays out likely depends on how the mandate fares in court.
When it comes to dealing with COVID-19 mandates, regulations, and best practices, it is a minefield for in-house lawyers, especially small legal teams that serve small businesses. Fortunately, with Practical Law, the right advice, materials, and guidance are just a click away.