Vaccination Mandates: The Latest on OSHA’s Emergency Temporary Standard, Other Mandatory Vaccination Considerations, and Answers to FAQs

COVID-19

During our recent webinar, Federal Vaccine Mandates: Key Takeaways and Action Steps for Employers, we covered the critical components of the Occupational Safety and Health Administration’s (OSHA) new Emergency Temporary Standard (ETS) requiring mandatory vaccination policies for private employers and discussed what steps employers should take in light of pending legal challenges to the ETS.

The legal landscape surrounding federal vaccine mandates remains complex and unsettled. As discussed in the webinar, the 5th U.S. Circuit Court of Appeals issued a stay against enforcement of the ETS. That case and several others from various circuits were consolidated in the 6th Circuit, as required by federal multi-district litigation rules. The government moved to dissolve the stay, and the 6th Circuit accepted briefs from both sides in favor of and opposed to that motion. The court could decide this issue any time after December 10, but will more likely do so a few weeks later.

Similarly, the Centers for Medicare & Medicaid Services Omnibus Staff Vaccination Rule (CMS Rule) and President Biden’s Executive Order on Ensuring COVID Safety Protocols for Federal Contractors (Federal Contractor Executive Order), were recently stayed nationwide, and litigation is pending in multiple circuits. See the latest updates from Quarles & Brady regarding the CMS rule.

Impacts on Employers

In the meantime, OSHA, CMS, and the Safer Federal Workforce Task Force have announced that they will pause all implementation efforts while litigation is pending. Thus, employers are not required to have met the first deadline of December 6, 2021. However, the stays could be lifted at any time, so the January 4, 2022 deadline could remain relevant.

To further complicate matters, many states, including Florida, Tennessee, and Texas, have issued Executive Orders or statutes which conflict, at least in part, with the federal vaccine mandate rules. Therefore, although employers are generally able to decide to move forward with a mandatory vaccination policy regardless of whether they are required to do so by any of the “on hold” federal mandates, there are growing impediments that must be considered. The Quarles & Brady team continues to monitor state and local developments.

For now, the future of each vaccine mandate rule remains unknown. Regardless, employers can expect the losing side of all litigation to appeal to the U.S. Supreme Court, inevitably further delaying any definitive answers as to the enforceability of the ETS, CMS Rule, and Federal Contractor Executive Order. If the stays are lifted, the deadlines for employer action may suddenly become effective. For this reason, employers are well advised to be prepared for any situation by understanding the ins and outs of all applicable mandates.

Important Considerations Now

FAQs for Employers

These FAQs are designed to provide insights to employers navigating the implementation of a COVID-19 mandatory vaccine policy (i.e., as the Omicron variant makes its way into the U.S.), while the enforceability of the ETS, CMS Rule, and Federal Contractor Executive Order remain uncertain. Due to the high volume of questions received during the webinar, we are unable to address every question submitted by webinar participants. However, we have selected questions for this FAQ which were most frequently asked and/or have the broadest applicability. If you have a question that is not addressed below, contact your local Quarles & Brady attorney for additional guidance.

Q1. I am a health care entity, with over 100 employees and federal contracts. If the federal mandates are upheld, which will apply to me? And what if my state has prescribed more (or less) stringent requirements via state legislation?

A1. According to CMS, if an employer falls under the requirements of the CMS Rule, then the employer is expected to abide by the requirements established by the CMS Rule, and those requirements will take priority over other federal vaccination requirements, such as OSHA’s Healthcare ETS and the Federal Contractor Executive Order. Note, however, that there are rare situations where some staff members may not be covered by the CMS Rule but are covered by OSHA’s Healthcare ETS or the Federal Contractor Executive Order. In these rare instances where a CMS-covered employer has staff members not subject to the CMS Rule, that employer should review the regulations and comply with any other federal requirements as necessary.

If a healthcare entity does not fall under the requirements of the CMS Rule, then the Federal Contractor Executive Order or OSHA’s Healthcare ETS apply. In order to ensure compliance with either or both requirements, employers who find themselves in this situation should contact their local employment counsel.

With respect to states and localities taking independent action governing COVID-19 vaccination requirements, the OSHA COVID-19 Healthcare ETS, CMS Rule, Federal Contractor Executive Order, and the OSHA ETS (collectively the “Federal Rules”) make clear that the requirements laid forth in the Federal Rules preempt all conflicting state or local laws. In other words, states or localities that have prescribed more stringent requirements than the Federal Rules are permitted to do so—and employers must comply with such requirements—as long as the requirements do not conflict with the Federal Rules but merely meet or expand upon them. State or local laws that impose less stringent standards than the Federal Rules—such as outright prohibitions on employer mandates or requiring much broader grounds for employee exemptions—inherently conflict with the Federal Rules and therefore will be preempted by the requirements set forth by the Biden Administration, OSHA, and CMS in the Federal Rules. Put another way, the Federal Rules act as a floor when it comes to COVID-19 vaccine requirements and protocols, not a ceiling.

Q2: When in the hiring process can an employer ask an applicant for COVID vaccination status and, if necessary, begin the religious- or medical-based exemption request process? (Particularly relevant for states with laws re: current employees, e.g., FL)

A2. Employers are permitted to ask applicants whether they have received a COVID-19 vaccine at any time during the application process. Employers must be careful, however, to not ask any follow-up questions (e.g., “Why are you not vaccinated?”) that may reveal an applicant’s disability. Such disability-related inquiries can only be asked of an applicant after an employer has made a job offer. Note that some states, including Michigan, are considering legislation that would prohibit employers from asking applicants about their vaccination status. For the most up-to-date information on such state law requirements, contact Quarles & Brady.

As a best practice, employers might consider simply advising applicants in job postings that all newly-hired employees are required to provide proof of vaccination, unless they have been granted a medical- or religious-based exemption. Employers may begin the vaccine exemption request process before an individual starts his or her employment. Consider including language in an applicant’s conditional offer letter stating that the individual will need to provide proof of vaccination on or before the employment start date, or initiate the exemption request process by no later than a certain date, similar to pre-hire background and drug testing requirements. Depending on worksite location, nature of the position, and other factors, it may be permissible to condition applicant eligibility on full vaccination status; but such an approach requires careful analysis.

In states like Florida where private employers must comply with state law prohibiting certain kinds of mandatory vaccination policies with respect to current employees, employers who want to require vaccination must understand the precise restrictions and proceed carefully. One option is to address the requirement only to applicants (who are not employees covered by the law) as outlined above. This may resolve the issue entirely for employers who have passed the date for vaccination or exemption approval for their current workforce. Other options include postponing or suspending a “mandatory vaccination” policy and instead implementing a very stringent protection policy (e.g. N-95 masks at all times, daily testing, no use of communal facilities, etc.) with exemptions available at the employee’s choice upon proof of vaccination.

The anti-vaccine mandate state restrictions stand in stark contrast to the new law effective in New York City, which requires all private employers to implement mandatory vaccination policies with no test-out option. To determine whether your business operations might be impacted by state or local laws governing COVID-19 vaccine mandates and/or whether your existing policies are compliant, contact Quarles & Brady.

Q3. Can an employer choose to offer a weekly COVID-19 testing option for existing employees, but require vaccines for new employees?

A3. As Quarles & Brady advised in a previous FAQ alert, employers generally have the option to enforce different vaccination requirements for new and existing employees. Under the OSHA ETS, this option remains the same.

Relevant guidance makes clear that employers may implement “partial mandatory vaccination policies,” and still achieve compliance with the ETS. For example, an employer with both customer-facing personnel (e.g., those who work in a retail store) and non-customer-facing personnel (e.g., those who work in a corporate office setting) may choose to require vaccination only for customer-facing employees, and grant a test-out option for non-customer-facing employees.

A similar partial mandatory vaccination scheme could be implemented by employers who would like to require vaccination for new employees, and provide a test-out option for current employees. Instituting such a policy, however, will likely have various, unintended impacts—including with respect to how the employer will assess medical- and religious- based vaccine exemption requests from new employees. Accordingly, if you are considering this type of partial mandatory vaccination policy, contact legal counsel to assess the potential effects of doing so. As a point of note, Quarles & Brady has created comprehensive template vaccination policies and forms, which can be used by clients seeking careful guidance in this area and are available upon request.

Q4. Under the ETS, is an employer required to pay employees who test positive for COVID-19 or must quarantine due to a close contact?

A4. The ETS does not require employers to pay employees who contract or come into contact with COVID-19, but employers may still be required to provide paid time off pursuant to state or local law or collectively negotiated agreements. One of OSHA’s stated goals in promulgating the ETS was to facilitate increased vaccination rates. To that end, the ETS requires employers to offer paid time off to employees who need to receive their COVID vaccines or recover from vaccine-related side effects. Offering paid time off to recover from contracting or coming into contact with COVID-19 would not facilitate this goal, and so the ETS does not require employers to do so. However, many states have enacted paid sick leave laws which may require employers to pay employees who test positive for COVID-19 or must quarantine due to a close contact. Employers should consult with counsel before deciding whether to include paid sick leave for contracting/coming in close contact with COVID-19.

Quarles & Brady will continue to monitor the evolving litigation surrounding COVID-19 vaccine mandates. In the meantime, employers should continue to prepare for the possibility that the laws will be held enforceable.

To further discuss issues related to mandatory vaccination programs, protocols, return-to-work issues, and compliant policies, contact your local Quarles & Brady attorney or:

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