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Vaccine Mandate Update: OSHA Clear to Enforce, CMS in Limbo

December 23, 2021

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

If you have any questions or need legal support, please contact:

Scott Stevens 251-405-5067 or

Weathers Bolt 251-445-4718 or

Trip Umbach   205-868-6072 or

Breanna Young  205-868-6020 or

Reed Bates 205-868-6080 or

Rick Harris 334-669-3433 or

Brittney Claud 205-868-6058 or

This information is not intended to provide legal advice, and no legal or business decision should be based on its content. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers. Read full disclaimer.

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