Friday evening, the Sixth Circuit Court of Appeals dissolved the stay on OSHA’s Vaccine Mandate for employers with 100 or more employees (the “Emergency Temporary Standard for COVID-19 Vaccination and Testing,” also known as the “Vaccination ETS”). As a result, the vaccination or testing mandate is now scheduled to go into effect, although with new dates for compliance. OSHA has stated that it will require compliance with most provisions of the Vaccination ETS, including a written policy, proof of vaccination, masking, and training, beginning on January 10, 2022. All employees must be vaccinated or tested beginning on February 9, 2022.
Several parties have already filed petitions with the United States Supreme Court, but given the short deadline, we recommend that all employers prepare for compliance by, at least, putting an OSHA compliant written plan in place, training employees as required by the ETS, and collecting proof of vaccination from all employees. Commonly asked questions and answers on the Vaccination ETS are included here.
For those that are also watching the CMS Vaccine Mandate covering certain healthcare employers, note that the Fifth Circuit Court of Appeals ruled last week that the injunction does not apply in 26 (now 25) states, such that CMS is clear to begin enforcing the mandate in those 25 states. At this point, however, the CMS website still indicates that it has “suspended” enforcement efforts.
Finally, President Biden’s vaccine mandate for all federal contractors remains enjoined in all states based on a December 7, 2021 ruling by the Southern District of Georgia. Thus, the White House is unable to enforce the mandate at this time.
In sum, employers with over 100 employees have until January 10th and February 9th to comply with the OSHA mandate; healthcare entities in 25 states need to watch CMS closely, as CMS is now able to begin enforcing its vaccine mandate in those states; and federal contractors and sub-contractors remain protected by the nationwide injunction. Our team will continue to monitor this complicated web of mandates, enforcement, and court orders. We are available to provide guidance on the issue if needed.
Written By Weathers Bolt and Scott Stevens
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