Vaccine Mandate Madness

By Maureen E. James and John S. Gannon - Skoler, Abbott & Presser, P.C.

November 17, 2021

It has been a tough couple of days for OSHA. Last week, the U.S. Court of Appeals for the Fifth Circuit (located in New Orleans) issued a temporary order putting on hold OSHA’s “shot-or-test” rule for employers with 100 or more employees, citing “grave statutory and constitutional” concerns. Then a few days later, the same Court issued a more permanent (and more critical) ruling that ordered OSHA to “take no steps to implement or enforce” the rule “until further court order.” The Court explained:

“The Mandate’s stated impetus—a purported ‘emergency’ that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well.  And its promulgation grossly exceeds OSHA’s statutory authority.”

Ouch. To add insult to injury, the next decision in this saga (and probably the final decision unless and until the U.S. Supreme Court gets involved) will be issued by the U.S. Court of Appeals for the Sixth Circuit (located in Cincinnati), which covers the mostly red-leaning states of Ohio, Kentucky, Tennessee, and Michigan.

The U.S. Court of Appeals for the Sixth Circuit was selected at random to hear all the legal challenges to the OSHA Emergency Temporary Standard (“ETS”). Most of the judges there were appointed by Republican presidents. This appears to be good news for those who want to block the shot-or-test rule for good. We will keep you posted on how this case develops over the next few weeks, but for now, we are also postponing our webinar on the OSHA ETS scheduled for Friday, November 19 until we have more clarity on whether the ETS will come to fruition.

When it comes to vaccine mandates though, OSHA is not the only game in town. There are separate mandates in place for federal contractors and many facilities that receive funding from the Centers for Medicare & Medicaid Services (CMS). The rulings in the OSHA shot-or-test cases have no effect on these other mandates (although, we may see similar legal challenges to these mandates over the next few weeks).

Here is a summary of the other mandates:

Federal Contractors

Back on September 9, 2021, President Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors. The order directed federal departments and agencies to include provisions in their contracts and contract-like instruments that required federal contractors, and applicable subcontractors, to comply with COVID protocols outlined by the Safer Federal Workforce task force. That group issued detailed protocols in the COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.

The guidance outlines requirements for “[c]overed contractors [who] must ensure that all covered contractor employees are fully vaccinated for COVID-19, unless the employee is legally entitled to an accommodation. Covered contractor employees must be fully vaccinated no later than January 18, 2022.”

The implication of this mandate may be far-reaching, as the definition of “[c]overed contractor employee—means any full-time or part-time employee of a covered contractor working on or in connection with a covered contract or working at a covered contractor workplace. This includes employees of covered contractors who are not themselves working on or in connection with a covered contract.”

Although these requirements have some exceptions and provide for accommodations, they impact a very large number of employers. Unlike the visceral reaction to OSHA’s vaccine mandate, federal contractors have not quickly filed suit to seek a stay or a reversal before the January deadline. Why is that? “It’s not personal, it’s just business.”  Michael Corleone was right. Here the federal government is using its heavyweight status as leverage in a business agreement, which ultimately in a free market means if you don’t want to agree to these terms in your federal contract we will find someone who will.

There has been some pushback by employees who are seeking to force their employers to object, but this presents a catch-22 for the employers. They can make employees happy by refusing to comply, but then run the risk of losing the federal government’s business that keeps their workers working. Ultimately, there are no large-scale efforts to overturn the mandate for federal contractors, and it looks like the January 18, 2022 deadline will stand.

CMS

On November 4, 2021, CMS issued an emergency rule requiring COVID-19 vaccination for all eligible employees of healthcare facilities that participate in the Medicare and Medicaid programs. Employees must be fully vaccinated by January 4, 2022, or have received a religious or medical exemption, or deferral. The regulations are outlined in an Interim Final Rule and provide for a multitude of “Medicare and Medicaid-certified provider and supplier types: Ambulatory Surgery Centers, Community Mental Health Centers, Comprehensive Outpatient Rehabilitation Facilities, Critical Access Hospitals, End-Stage Renal Disease Facilities, Home Health Agencies, Home Infusion Therapy Suppliers, Hospices, Hospitals, Intermediate Care Facilities for Individuals with Intellectual Disabilities, Clinics, Rehabilitation Agencies, and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services, Psychiatric Residential Treatment Facilities (PRTFs) Programs for All-Inclusive Care for the Elderly Organizations (PACE), Rural Health Clinics/Federally Qualified Health Centers, and Long Term Care facilities.” There are exclusions for some types of facilities, such as assisted living, group homes, physician offices, and schools, which do not meet the criteria to be Medicare and Medicaid-certified facilities; however, the coverage for CMS’ mandate is extensive.

In their detailed outline of the requirements, CMS makes it clear that “[t]his vaccination requirement applies to eligible staff working at a facility that participates in the Medicare and Medicaid programs, regardless of clinical responsibility or patient contact.” Employees may be excluded from the requirement based on medical or religious exemptions, or if they must differ their vaccination because of certain criteria outlined by the CDC, otherwise the deadline of January 4 is coming quickly.

Although on its face it seems like CMS’ mandate is “just business,” a la the vaccine requirements for federal contractors, because it implicates health care and uniquely complex programs like Medicare and Medicaid, the objections were not by employers or employees, but by the states. Missouri, Nebraska, Arkansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, New Hampshire and Kansas have aligned in a joint effort to reverse the requirements. The case is pending in federal court in Missouri and has yet to have any ruling that would deter CMS from its targeted vaccine deadline.

Many employers may be covered by the pending mandates for federal contractors and/or CMS. If you have questions regarding vaccine policies, in particular how to comply with the federal mandates, please feel free to contact our office.