Last fall, we were furiously drafting mandatory COVID-19 vaccine policies for a variety of employers, including healthcare facilities, employers with more than 100 employees, and federal contractors. With the back and forth of whether a court would block implementation of the Biden administration’s vaccine mandates, many of those policies were left in a state of limbo. Today we have updates on the status of those vaccine mandates.
Federal Contractor Vaccine Mandate
On August 31, 2022, the Biden administration updated the Safer Federal Workforce Task Force Guidance, which previously required mandatory vaccination for all employees who work on or in connection with a federal contract.
This updated guidance comes after the U.S. 11th Circuit Court of Appeals ruled the nationwide injunction of the vaccine mandate for federal contractors was overly broad. Consequently, the federal government was briefly able to enforce the Biden administration’s vaccine mandate, and the injunction continued for the states that challenged it and their individual contractors.
The government, however, dispelled any panic for contractors not covered under the injunction after the 11th Circuit’s order by ensuring it wouldn’t enforce the vaccine requirement. Under the new guidance, the federal government will take no action to implement or enforce it. For employers who already added the mandatory vaccine requirement to their existing contracts, the government will also not seek to require continued compliance with the vaccination rules.
The Safer Federal Workforce Task Force Guidance continues to make updates to its COVID-19 protocols for federal contractors consistent with the updated guidance from the Centers for Disease Control and Prevention (CDC). Federal contractors should continue to visit the Safer Federal Workforce website to ensure compliance with the latest guidance found in the frequently asked questions.
OSHA Emergency Temporary Standards
Back in November 2021, the Occupational Safety and Health Administration (OSHA) required employers with over 100 employees to either mandate vaccines or require weekly testing. After a slew of litigation (and a U.S. Supreme Court decision), OSHA withdrew its vaccination and testing emergency temporary standard (ETS) in January 2022. The agency, however, stated that it wasn’t withdrawing the ETS as a proposed rule, but stated it was “prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”
On August 26, 2022, the D.C. Circuit ruled on a lawsuit filed by National Nurses United and other unions representing healthcare employees. The unions hoped to expedite the OSHA process of issuing a permanent COVID-19 healthcare standard. The unions requested that the agency:
- Issue a permanent standard within 30 days of a court ruling;
- Retain the previous Healthcare ETS that lapsed in December 2021 until a permanent standard supersedes it; and
- Enforce the lapsed Healthcare ETS.
The D.C. Circuit ruled OSHA could implement the permanent ruling, if any, on its own time, and it would not otherwise take any action to expedite the process.
OSHA hasn’t otherwise issued any additional COVID-19 ETS rules, but it continues to encourage vaccinations. Throughout the spring of 2022, OSHA accepted comments regarding the final rulemaking for healthcare employees regarding COVID-19. The agency still hasn’t issued a permanent standard.
CMS Vaccination Rule
The Centers for Medicare and Medicaid (CMS) Omnibus COVID-19 Health Care Staff Vaccination Rule is the only remaining vaccine mandate out of the three issued by the Biden administration. Since January 2022, when the U.S. Supreme Court upheld the vaccine mandate, employers have been grappling with implementing and enforcing it.
The rule required full vaccination for eligible healthcare workers, except employees with exemptions based on religious beliefs or medical conditions. For Arkansas, Kansas, Missouri and Oklahoma employers, February 14, 2022, was the Phase I deadline for employees to receive the first dose of a vaccine. Phase 2 required employees to be fully vaccinated or have an exemption by March 15, 2022.
CMS continues to enforce the requirement through onsite survey reviews and issues citations for noncompliance with the vaccination mandate. It has allowed employers the opportunity to come into compliance based on the severity of the noncompliance, but a facility’s continued failure to comply runs the risk for additional enforcement actions, including losing Medicare or Medicaid payment.
Morgan E. Geffre is an employment lawyer with Foulston Siefkin LLP in Wichita, Kansas. She can be reached at mgeffre@foulston.com.