Federal Vaccine Mandates: Uncertainty Continues Into New Year

More than 21 months after the outbreak of COVID-19 – and many variants later – the ongoing pandemic continues to impact numerous aspects of everyday life. With no clear end in sight, the federal government began to roll out various federal vaccine and testing mandates in 2021. As expected, these mandates were met with numerous legal challenges and are now winding their way through the courts. The fluidity of the situation has created much uncertainty that will continue at least through the new year, when the Supreme Court of the United States will consider legal challenges to two of the measures in a special hearing.

Pursuant to the President’s September 2021 “Path Out of the Pandemic” action plan, OSHA issued a “vaccine-or-test” Emergency Temporary Standard (“ETS”) mandating that large employers (i.e., 100 or more employees) require their workers to be fully vaccinated or regularly produce a negative COVID-19 test before reporting to work. (For further detail on the requirements of the OSHA ETS, see here). The President also issued an Executive Order mandating vaccination among certain federal contractors and subcontractors. The President’s plan included other vaccine mandate measures as well, applicable to certain federal employees and healthcare workers. In November of 2021, the White House estimated that two-thirds of all workers would be covered by the new vaccination measures.

If implemented and enforceable, the Administration’s federal mandates would require immediate action for many employers nationwide. For example, the OSHA ETS would require large employers to undertake good faith efforts to promptly come into compliance with its requirements and included deadlines for adoption of a written vaccine-or-test policy as well as testing of unvaccinated employees. In addition, the federal contractor vaccine mandate – if upheld – could have a disruptive impact on contractors’ ability to maintain their labor workforces. In short, many employers are faced with the prospect of implementing numerous additional COVID-19-related measures in order to comply with the new federal mandates.

However – at least for the time being – the situation remains in flux. Although the OSHA ETS was initially banned nationwide, that ban was dissolved on December 17, 2021, prompting OSHA to immediately issue a statement confirming its intention to enforce the ETS. Since then, the Supreme Court announced that it will hold a special hearing on the OSHA ETS in January, 2022. The Supreme Court will also hear challenges to the healthcare worker vaccination mandate (which is currently in effect in 25 states, including Massachusetts). At least as of the publication of this article, the federal contractor mandate remains under a nationwide stay. But if history is a guide, this could change at a moment’s notice.

Given the volatility of the situation, employers potentially affected by the various federal measures should keep abreast of new developments, as they could change on a daily basis. It would also be prudent for employers to understand the requirements and potential impacts of the various federal measures so they can hit the ground running in the event that the measures are upheld in court.

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