10 Mar 2022

Guidance for Employers on Vaccination and Testing Rules

By: Richard D. Glovsky, LOCKE LORD LLP

This article addresses the COVID-19 vaccine and testing rules promulgated by the Biden Administration. It is an excerpt from the practice note Pandemic Flu/Influenza/Coronavirus (COVID-19): Key Employment Law Issues, Prevention, and Response.

Practical Guidance subscribers may view the full guidance, which answers health and safety related return-to-work questions for employers, and includes information on wage and hour issues, telecommuting guidance, traveling employees, labor-management relations, and summarizes recent related legislation.

Vaccination Requirements under the Biden Administration for Federal Contractors and Subcontractors

On September 9, 2021, President Biden issued Executive Order 14042,¹ after which the Safer Workplace Task Force issued its COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors (Guidance).² However, on November 30, 2021, a federal district court blocked the COVID-19 vaccine mandate for federal contractors from taking effect in Kentucky, Ohio, and Tennessee.³ On December 7, 2021, a federal judge issued a nationwide injunction blocking the COVID-19 vaccine mandate for federal contractors from going into effect, ruling the Biden administration had likely exceeded its procurement authority.⁴

The Guidance required covered federal contractors and subcontractors to ensure that by December 8, 2021, their covered employees were fully vaccinated for COVID-19.

Exceptions are limited to valid requests for medical or religious exemptions. Federal contractors and subcontractors also are required to make sure that employees and visitors adhere to masking and social distancing rules.

The Guidance does not apply to contracts existing prior to October 15, 2021, though it does apply when options are exercised or extensions are granted. Contract solicitations between October 15 and November 14, 2021, must include Guidance requirements. Contracts awarded after November 14, 2021, must include the requirements set out in the Guidance. Contracts and subcontracts of $250,000 or less are excluded as are contracts for the provision of products, among others.

The definition of a covered contractor is a broad one, including those with employees who work in connection with a covered contract or at a covered contractor’s workplace. An entire workplace location may be covered even if the contractor or subcontractor only occupies a portion of the facility.

All non-exempt employees had to be vaccinated by December 8, 2021. In addition, all employees and others on contractor or subcontractor premises must comply with the CDC’s masking and social distancing guidance. Fully vaccinated individuals are not required to socially distance. Employers may avoid the masking and social distancing mandates by being located in a moderate or low transmission rate location for two successive weeks. However, even in locations of moderate or low transmission rates, everyone on premises in close contexts (e.g., open floor plan spaces) must wear masks. Exceptions apply in several contexts, including when eating or drinking, in closed offices with floor to ceiling walls, or when employees have difficulty breathing. Contractors and subcontractors are required to designate one or more employees as Designated COVID-19 Coordinators to manage compliance.

OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS)

On November 4, 2021, OSHA issued its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) effective the next day.⁵

KEY UPDATE: On January 13, 2022, a six-justice majority of the United States Supreme Court ruled that OSHA’s ETS exceeded its statutory authority and therefore stayed the implementation of the ETS finding that the Secretary of Labor, who oversees OSHA, lacked the authority to issue the ETS.⁶ Quoting from a 2021 opinion of the Court, it reasoned that “[w]e expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Noting that the OSHA mandate affecting employers with more than 100 employees (except those subject to other mandates such as federal government employees and those subject to the Centers for Medicare & Medicaid Services (CMS) mandate issued by the Secretary of Human Services applicable to facilities that receive Medicaid and Medicare funding) would impact approximately 84 million Americans, the majority concluded that when Congress enacted the Occupational Safety and Health Act in 1970, it did not clearly express that OSHA could issue an ETS of that magnitude. While it recognized that OSHA may regulate “occupation-specific risks,” the Court noted that it had never previously adopted a “broad public health regulation of this kind.”

Three members of the majority (Justices Gorsuch, Thomas, and Alito), in a concurring opinion, offered that the major questions doctrine lent further support to the majority’s ruling. In other words, those three justices expressed the view that in a matter of the magnitude of the OSHA vaccination and testing emergency mandate, not only must Congress speak definitively, but, if it does not, the matter is left to state and local governments to determine.

The dissenters (Justices Sotomayor, Breyer, and Kagan) feverishly pointed to the toll COVID-19 had leveled on the country, contending that the ETS “perfectly fits the language of the applicable statutory provision” and that the Court should defer to the agency’s deep-seated wisdom. It pointed to the “legal standard governing a request for relief pending appellate review” (i.e., that the “applicant must show (1) that ‘their claims are likely to prevail,’ (2) ‘that denying them relief would lead to irreparable injury,’ and (3) ‘that denying them relief would not harm the public interest’”), suggesting that in this instance the public interest is paramount.

Now the OSHA ETS is stayed pending a ruling on the merits on an appeal from the U.S. Court of Appeals for the Sixth Circuit and a possible writ of certiorari on the merits of the case to the Supreme Court to review again. Even if the matter continues to be litigated, it is unlikely that the decision on the merits will be any different than the January 13, 2022, Supreme Court decision to stay the OSHA ETS. Certainly the merits will not be reached in the near future, and a more narrow ETS along the lines the majority suggested it would permit is unlikely to surface soon, if at all, meaning for the unforeseen future, most large employers will not need to concern themselves with OSHA’s ETS.

Below is a review of the caselaw on the OSHA vaccination or testing ETS prior to the Supreme Court’s decision.

On the effective date of the OSHA ETS, the U.S. Court of Appeals for the Fifth Circuit issued a stay, grinding the ETS to a halt at least within the jurisdiction of that circuit in Mississippi, Louisiana, Texas, and the Canal Zone.⁷ On November 12, 2021, the Fifth Circuit issued an order staying enforcement and implementation of OSHA’s ETS pending further judicial review.⁸ At the time, proceedings in all but one of the U.S. Courts of Appeals raised similar issues. Shortly after the Fifth Circuit’s action, all of those various cases were consolidated in the U.S. Court of Appeals for the Sixth Circuit. On December 17, 2021, three-judge panel of the Sixth Circuit, in a 2-1 decision, vacated the Fifth Circuit’s hold on the mandate.⁹ OSHA then promptly gave companies until January 10 to comply with the Biden Administration’s COVID-19 vaccinate-or-test rule and until February 9 before issuing citations for violating the regulation’s testing requirement. According to the Labor Department’s statement that followed the Sixth Circuit appeals court decision reviving the measure, the enforcement grace period hinges on employers “exercising reasonable, good faith efforts to come into compliance with the standard.”

On December 20, 2021, the Supreme Court received appeals asking it to freeze the Sixth Circuit’s decision or to bypass the normal appeals process and immediately hear arguments on the case.

Coverage

If upheld by the courts, the ETS would apply to employers with 100 or more employees at any time after November 5, 2021. All employees, including seasonal and temporary ones, count. Workplaces covered by the federal contractor vaccination mandate¹⁰ or the June 2021 ETS for healthcare providers¹¹ generally are exempt from the ETS, but only at covered worksites. Exclusions otherwise are narrow: workplaces where there are no other co-workers or customers, employees who work remotely, or employees who work exclusively outdoors.

Requirements

If effective, covered employers are required to adopt a policy that mandates vaccinations for all employees except those granted a religious belief or disability exemption. Alternatively, employers may pronounce a policy permitting anyone not vaccinated by January 4, 2022, to provide proof of regular testing for COVID-19. The ETS permits employers to apply either policy option to different locations. OSHA has posted policy templates on its ETS webpage.¹²

The ETS also requires confidential recordkeeping of proofs of vaccination and an employee roster with each employee’s vaccination status. An employee who has lost his or her vaccination card may satisfy the proof requirement with an attestation including mandatory representations.

Employers must provide up to four hours of paid time off per vaccination dosage and reasonable paid leave to recover from vaccination side effects. Paid time off does not apply to non-working hours during which an employee chooses to be vaccinated. OSHA presumes two days is reasonable. Employers may require employees to utilize sick leave or paid time off (PTO) if they have a PTO policy.

If an employer elects to allow testing, employees who attend the worksite at least once in a seven-day period must be tested once every seven days. Employees who report less frequently must be tested within seven days prior to returning to the workplace. Self-administered tests are unacceptable unless observed by the employer or a telehealth provider. The ETS does not require employers to pay for testing, but some states (e.g., California and Illinois) do.

Unvaccinated employees are required to mask unless alone in a closed room, while eating or drinking, or for identification purposes.

Employers are required to advise employees, inter alia, about the ETS, the policies and procedures to implement it, protections against retaliation, and information about criminal penalties for providing false information. Employers also are required to report to OSHA COVID-19 hospital admissions within 24 hours of becoming aware of them and fatalities within eight hours.

The ETS preempts conflicting state laws.

CMS Emergency Regulations

The CMS released emergency regulations on November 4, 2021, requiring covered healthcare facilities to establish a policy ensuring staff had received the first dose of a two-dose vaccine or a one-dose vaccine prior to providing any care, treatment, or other services by December 5, 2021. All staff had to be fully vaccinated by January 4, 2022. There are exemptions based on recognized medical conditions or religious beliefs, observances, or practice.¹³

KEY UPDATE: On January 13, 2022, a majority of five justices of the U.S. Supreme Court upheld CMS’s emergency regulations, finding that there was ample authority for it to issue the emergency regulation, essentially clearing the way for it to apply nationwide.¹⁴ Unlike in the Court’s determination that the OSHA ETS applicable to most U.S. employers of 100 or more employees was invalid, the majority in this case found that statutory enactment of the Medicare and Medicaid programs provided ample context for the CMS’s vaccination mandate issuance. It went on to emphasize that the Secretary of Health and Human Services’ edict was nor arbitrary or capricious and that he was not required to have conferred with the states beforehand.

The dissenters (Justices Thomas, Gorsuch, Alito, and Barrett), in two opinions, contended that the statutory authority upon which the majority relied was not sufficiently specific and because the CMS’s mandate was an interim rule, the government was compelled to follow the ordinary notice and comment procedure “before placing binding rules on millions of people . . . .”

Unlike the vaccine and testing ETS issued by OSHA, the CMS mandate remains the law of the land. Accordingly, all entities that receive Medicare and Medicaid funding now must comply. It remains to be seen when CMS will require the first dose of a two-dose vaccine or a one-dose vaccine to be administered and the date by which all staff must be fully vaccinated.

Below is a review of the caselaw on the CMS mandate prior to the Supreme Court’s decision.

On November 29, 2021, a federal court in the Eastern District of Missouri blocked CMS from enforcing the mandate in 10 states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.¹⁵ However, on December 15, 2021, the U.S. Court of Appeals for the Fifth Circuit¹⁶ stayed a nationwide injunction put into place by the Western District of Louisiana¹⁷ on Nov. 30, 2021. Although 14 states were parties to the case, the district court had applied its injunction as to any state not a party to the lawsuit that had not been enjoined by the Eastern District of Missouri’s Nov. 29 decision. The Fifth Circuit’s ruling trimmed the injunction to those 14 states. Thus, the prohibition on enforcement of the CMS vaccine mandate remains in effect in Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, and Ohio. The CMS vaccine mandate is also still enjoined for the time being in the 10 states litigating in the Eastern District of Missouri: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.

Practical Guidance subscribers may access the full practice note, Pandemic Flu/Influenza/Coronavirus (COVID-19): Key Employment Law Issues, Prevention, and Response, for additional guidance.

Richard D. Glovsky handles significant employment-related litigation, including class actions, wage and hour issues, and discrimination and retaliation claims. Most significantly, he has become a trusted adviser and general counsel to various companies and their senior executives, including conducting numerous training programs. He also prosecutes cases for financial services, healthcare, hospitality companies, and other businesses to protect their trade secrets and to prevent former employees from violating non-competition and non-solicitation obligations. Mr. Glovsky has developed a niche advising clients on Enterprise Risk Management programs and Own Risk and Solvency Assessment reports.

Guidance for Employers on Vaccination and Testing Rules

Vaccination Requirements under the Biden Administration for Federal Contractors and Subcontractors

OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS)

CMS Emergency Regulations

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