Since the availability of COVID-19 vaccines to the public, the Biden Administration has made several efforts to implement vaccine or testing mandates for workers in certain capacities. Below are overviews of, and updates on, the statuses of vaccine mandates – relevant to TCIA’s members – that have been issued as part of the federal government’s response to the COVID-19 pandemic.
OSHA Emergency Temporary Standard Private Sector Employer Vaccine Mandate
On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to implement vaccination or testing policies for their workers. Although generally seen as a necessary precaution by members of the Democratic Party, the ETS contradicted many state requirements and sparked significant opposition from various businesses and business associations, employee-advocacy groups and religious-freedom organizations that asserted, among other things, that the ETS was “inherently flawed” and “unenforceable.”
Ultimately, more than three dozen lawsuits were filed against the ETS, with at least one in all 12 Circuit Courts in the country. On November 6, the U.S. Court of Appeals for the 5th Circuit granted an emergency motion to stay the ETS, and on November 12, they extended the stay while they further reviewed the motion for a permanent injunction, ordering OSHA to stop implementation and enforcement of the ETS until further court order. Due to the high volume of cases at various Circuit Courts, a lottery was held on November 18 to determine which Circuit Court would hear the case, which the 6th Circuit won.
In December, the U.S. Court of Appeals for the 6th Circuit vacated the 5th Circuit Court’s nationwide emergency motion to stay the ETS, paving the way for OSHA to continue enforcement of the ETS vaccine and testing requirements. The decision led several business groups and Republican-led states to file emergency applications with the U.S. Supreme Court seeking to reinstate the stay. Following an emergency hearing on the OSHA mandate, the Supreme Court stayed the ETS on January 13, 2022, and sent it back to the 6th Circuit Court to rule on its merits, finding that challengers were likely to prevail on their claims.
After evaluating the Supreme Court’s decision, OSHA announced the withdrawal of the ETS as an enforceable emergency temporary standard on January 25, 2022. OSHA clarified, however, that the agency was not withdrawing the ETS as a proposed rule, adding that it is now prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard. Despite the withdrawal of the Vaccination and Testing ETS, Secretary of Labor Marty Walsh stated that OSHA would continue to “do everything in its existing authority to hold businesses accountable for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause,” indicating OSHA will remain focused on ensuring that employers continue to take practical measures to reduce the risk of COVID-19 spread in the workplace.
Federal contractor mandate
On September 9, 2021, President Biden issued Executive Order (EO) 14042 requiring all federal contractors to mandate COVID-19 vaccinations for their employees by including a clause that the contractor and any subcontractors (at any tier) would incorporate into lower-tier subcontracts. The EO required the clause to specify that the contractor or subcontractor would, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations issued by the Safer Federal Workforce Task Force (Task Force). Since September 2021, directives for employers of federal contractors and subcontractors have been issued primarily through detailed and continuously updated FAQs published on the Task Force’s website.
Numerous lawsuits have been filed against the mandate, but the District Court for the Eastern District of Kentucky was the first to issue a substantive decision, on November 30, that stopped enforcement in plaintiff states (Kentucky, Ohio and Tennessee). On December 7, the U.S. District Court for the Southern District of Georgia issued a nationwide preliminary injunction against the mandate, enjoining the federal government from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory. The Biden Administration has appealed the decision to the 11th Circuit Court, which has since upheld the lower court’s injunction but has not yet ruled on the legal merits of the mandate. Litigation continues for this rule in the 11th Circuit Court.
On January 22, the Task Force announced that the federal government would take no action to implement or enforce the COVID-19 vaccination requirement pursuant to EO 14042 in order to “ensure compliance with an applicable preliminary nationwide injunction, which may be supplemented, modified or vacated, depending on the course of ongoing litigation.” Currently, however, Task Force guidance on other federal-agency safety protocols based on vaccination status – including guidance on protocols related to masking, distancing, travel, testing and quarantine – remains in effect.
Given the continuously evolving nature of these mandates, it is important for employers to keep up to date on the legal challenges that may affect the enforceability of guidance covering their workplaces. To see the current status of the aforementioned mandates, please visit saferfederalworkforce.gov and www.osha.gov/coronavirus/safework.
Lara Dunkelberg is a legislative assistant with Ulman Public Policy, TCIA’s Washington, D.C.-based advocacy and lobbying partner.
Want to know more? Reach out to Aiden O’Brien, TCIA’s advocacy & standards manager, at aobrien@tcia.org.
