Changes in mandate status keep employers in limbo

Large employers have spent the last month of 2021 caught in a tug of war between the Biden administration’s vaccine mandates and states and employers that have filed lawsuits opposing them.  

In a recent victory for the administration, a panel of judges with the 6th U.S. Circuit Court of Appeals in Cincinnati ruled 2-1 on Dec. 17 to reverse a ruling from Nov. 12 that had paused President Joe Biden’s requirement that employers with 100 or more workers mandate the vaccine or require weekly COVID-19 testing for their employees.

The administration’s original vaccine mandate — in the form of an Occupational Safety and Health Administration Emergency Temporary Standard — was released Nov. 4 and was slated to go in full effect on Jan. 4. Various groups and states immediately filed suits objecting to the mandate and it was paused for more than a month, but as of Friday’s ruling is back on. A flurry of mandate opponents, including state regulators, however, have asked the U.S. Supreme Court to take up the matter by Dec. 30.

OSHA will not issue citations for “noncompliance with any requirements of the ETS” before Jan. 10 and “will not issue citations for noncompliance with the standard’s testing requirements” before Feb. 9 “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard,” a Department of Labor spokeswoman said. “OSHA will work closely with the regulated community to provide compliance assistance.”

For employers — who will have to bear implementation costs — the consensus is uncertainty, experts say. For much of this year, companies have been in wait-and-see mode regarding moves by OSHA, after Mr. Biden promised in the first week of his presidency to make workplaces safer in the pandemic.

For example, employers spent months in early 2021 expecting an ETS on workplace safety for all industries and the outcome was one — issued in June — that only applied to health care workers, an ETS that expired Tuesday with little fanfare.

Meanwhile, companies working on U.S. government contracts were issued a vaccine mandate that a federal judge in the U.S. District Court for the Southern District of Georgia halted this month, saying Mr. Biden likely exceeded his authority.

Similarly, after much back and forth in federal court, a requirement that health organizations accepting Medicare and Medicaid mandate employee vaccinations was temporarily halted. But the 5th U.S. Circuit Court of Appeals in New Orleans ruled Dec. 16 that a lower court had the authority to block the mandate in only the 14 states that had sued and was wrong to impose a nationwide injunction, thus reviving it in 26 other states.

The largest vaccine mandate, which affects employers with staffs of 100 or more, is currently still a go. In the days following the latest court decision companies have scrambled to understand what’s needed to comply, and many major law firms scheduled webinars and issued talking points via e-mail.

The requirements are many, including documentation on who is vaccinated and on adherence to Equal Employment Opportunity Commission protocols on exemptions, and recordkeeping and disclosure protocols. 

“I think confusion is the order of the day,” said Gary Pearce, Waterford, Michigan-based chief risk architect at risk and analytics company Aclaimant Inc. “It’s a whole lot of moving pieces, and nobody knows what to think of this.”

Year two of the Biden administration will likely be much of the same, according to legal experts who say political differences on both sides of the issue are unlikely to be resolved.

“I don’t see this administration backing down — not because they are trying to be difficult but rather because this administration has said one of their key priority areas is tackling COVID-19 and implementing vaccination requirements,” said Andrew Brought, Kansas City, Missouri-based partner with Spencer Fane LLP, whose practice area includes OSHA and health and safety issues.

“2020 and 2021 have been tough years for everyone, but with all the new regulations and official government guidance, it is really difficult to be an employer nowadays,” said Marissa Mastroianni,  an associate and employment litigator for Cole Schotz PC in Hackensack, New Jersey. “You have the federal government saying one thing, then you have the courts saying, wait, this may not be legal.”

With the omicron variant spreading, companies will need to keep track of changes, she said. “It feels like there is something new on a weekly basis,” she said.

For now, attorneys are telling their clients to get ready.

“Get those pieces into place,” said David Barron, a Houston-based member of Cozen O’Connor P.C. “There were a lot of people in wait-and-see mode, and a lot of them are going to stay in wait-and-see. If the Supreme Court doesn’t weigh in before January it’s going to be hard to stay in wait and see mode. You can’t tell your employees the day before” to comply.

Kelley Barnett, New York-based vice president and corporate counsel for labor and employment at workers compensation insurer AmTrust Financial, said in an e-mail that employers shouldn’t wait.

“Because the future of the ETS is still uncertain, businesses should continue – or start – getting ready behind the scenes,” she wrote. “At a minimum, covered businesses should decide between the vaccine or weekly testing and mask options, prepare to collect acceptable forms of employee vaccination status as set forth in the ETS, and prepare written vaccine or weekly testing and mask policies as well as forms and related processes for those employees who will be entitled to accommodations due to medical contraindications.”