Supreme Court Blocks Employer Vaccine Mandate but Allows Health Care Mandate

On January 13, the United States Supreme Court, in a 6-3 decision, ruled that the OSHA ETS (Emergency Temporary Standard), requiring private employers with 100 or more employees to impose vaccine and testing mandates, is unlawful and exceeds OSHA’s authority. The Supreme Court allowed a vaccine mandate for health care facilities that accept Medicare or Medicaid payments to remain in effect.

In an unsigned opinion, the Court said “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.” “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category,” the court wrote. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented. “In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed,” their dissent said.

Separately, the Court issued an opinion addressing the administration’s vaccination rules for health-care workers. A 5-4 majority upheld the health care worker vaccination rules. In another unsigned opinion, the Court said “We agree with the Government that the Secretary’s rule falls within the authorities that Congress has conferred upon him.” Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett filed a dissent.

Following the decision, the Biden administration encouraged employers to voluntarily enact COVID-19 vaccination and testing requirements.

Erickson | Sederstrom’s experienced employment and labor law attorneys are ready to help manage COVID-19 vaccination issues in the workplace. Please do not hesitate to contact one of our attorneys. Erickson|Sederstrom’s employment law attorneys can be reached at (402)397-2200.

December 20 Update Regarding Vaccine Mandates

Erickson|Sederstrom provides this update regarding the status of various vaccine mandates issued by the Biden administration.  These mandates have been the subject of court challenges with varying results.  It continues to be crucial for employers to remain up to date regarding the current status of vaccination requirements that affect their businesses, as the litigation will continue to move through the courts, leading to unpredictable outcomes until final resolution is reached, likely in the Supreme Court of the United States. 

In a key development, an injunction against enforcement of the large business mandate was lifted on December 17.

Large Business Mandate

Businesses with 100 or more workers must require employees to be vaccinated.  Unvaccinated employees must be tested weekly and wear masks while working.  The rule contains exceptions for employees who work alone or mostly outdoors.

This rule had been enjoined nationwide.  On Dec. 17, a three-judge panel of the 6th U.S. Circuit Court of Appeals allowed the mandate, lifting the injunction against enforcement.  Multiple cases from across the country had been consolidated into the 6th Circuit, which was selected at random through a court lottery system.

OSHA has announced that it will not issue employer citations before Jan. 10 for its vaccination mandate or before Feb. 9 for its testing requirement.

Health Care Worker Mandate

A wide range of health care providers that receive federal Medicare or Medicaid funding were to require workers to receive the first dose of a COVID-19 vaccine by Dec. 6 and be fully vaccinated by Jan. 4. The rule would affect more than 17 million workers in thousands of health care facilities and home health care providers.

The rule is enjoined in Nebraska and adjoining states.  A Missouri-based federal judge issued an injunction Nov. 29 barring the rule from enforcement in 10 states that had originally sued in federal court in Missouri.  There are injunctions in place in some other states based on separate lawsuits. 

The Biden administration is appealing these court rulings in separate appellate courts.  At this point, the cases have not been consolidated into any one federal appellate court. 

Federal Contractor Mandate

Contractors and subcontractors for the federal government are required to comply with federal workplace safety requirements, which require that new, renewed, or extended contracts include a clause requiring employees to be fully vaccinated Jan. 18.  There are limited exceptions for medical or religions reasons.

A federal judge in Georgia issued an injunction December 7 prohibiting enforcement of the requirement for contractors.  The ruling applies nationwide.  An appeal is expected.

Court Blocks COVID-19 Vaccination Mandate for Health Care Workers

On November 29, 2021, U.S. District Judge Matthew Schelp of the Eastern District of Missouri issued an Order granting a preliminary injunction against implementation of a federal government mandate for health care workers to receive COVID-19 vaccinations.  Judge Schelp’s order was issued in a lawsuit brought against the federal government by Nebraska and nine other states (Alaska, Arkansas, Iowa, Kansas, Missouri, New Hampshire, North Dakota, South Dakota, and Wyoming).  The Order applies to health care workers in these ten states.

The vaccine mandate was issued by the federal Centers for Medicare and Medicaid (CMS) earlier in November and applies to all Medicare and Medicaid certified medical providers.  Judge Schelp concluded that CMS had issued the mandate improperly and had to get approval from Congress. 

The preliminary injunction will remain in place unless and until there is a further court order modifying or removing the injunction.  It is anticipated that the federal government will appeal Judge Schelp’s Order.

Employers should consult with counsel to obtain further information and guidance about the most current circumstances.  Erickson|Sederstrom’s employment law attorneys are available to assist.

Mandatory Vaccination and Testing Requirements for Private Employers with Over 100 Employees

• OSHA issued its Emergency Temporary Standard (ETS) regarding Covid-19 vaccination and testing requirements on November 4, 2021. 

• The OSHA ETS will take effect immediately, but most requirements do not kick in until January 4, 2022, or thirty (60) days after the date the ETS was published in the Federal Register.  By January 4, 2022, employers will be required to comply with the vaccination requirements. 

• After sixty (60) days, employers must comply with all testing requirements for those employees who have not become fully vaccinated.   

• This new vaccination and testing mandate will apply to all employers with more than 100 employees, and to all federal contractors. 

• It will not apply to employees who either work at home or work outdoors. 

• Covered employers will have two options, the first being to mandate that all employees not working at home or outdoors must be fully vaccinated by January 4, 2022. 

• There is an exemption to the vaccination requirement for those employees who are entitled to a reasonable accommodation due to a sincerely held religious belief, i.e., active practice of a recognized religion and a valid religious objection. 

• An exemption will also be provided for any employee who has valid medical certification from a licensed healthcare provider that the employee should not receive the vaccination either because of a specific medical condition or disability.   

• Under the vaccination requirement, employees must provide proof of vaccination either through a CDC Vaccination Record Card, or other medical records of immunizations received, documentation from a certified pharmacy, or other source. 

• The vaccination must be one of the FDA approved vaccinations, i.e., Pfizer, Moderna or Johnson & Johnson. 

• Any employee who refuses to be vaccinated will have an alternative method of compliance with the mandate by wearing a mask at all times when they are not either in a personal office with the door closed, or eating or drinking, in combination with providing proof of a valid negative SARS test for Covid every seven (7) days. 

• There is no requirement that employers pay for the regular testing. 

• The OSHA ETS requires that all employers provide up to four (4) hours of paid time off for employees to get vaccinated, including travel time, as well as provision of reasonable paid time off to recover from any illness or side effects as a result of receiving the vaccination.   

• Any employee who has tested positive for Covid-19 in a SARS test or otherwise diagnosed with Covid by a licensed health practitioner will not be subject to testing for a period of ninety (90) days following any such positive diagnosis, due to the high incidence of false positives for ninety (90) days after a Covid infection. 

• All employers are required to establish a written policy concerning the mandatory vaccination requirement, and an alternative policy outlining the only exemptions the Mandatory Vaccination Requirement which allows employees to avoid the vaccination mandate by wearing a mask at all times in the workplace, unless in a private office with the door closed or eating, drinking, etc., and provision of proof of regular negative tests for Covid-19 every seven (7) days. 

• Covered employers found to be in violation may be fined up to $13,653 for each violation, and any covered employer found to have willfully or repetitively violate the standards may be fined up to $136,532.

 Our labor and employment law experts at Erickson | Sederstrom, P.C., LLO, can assist you with development of the required policies and on-going compliance with this new OSHA ETS Mandate.

OSHA Releases COVID-19 Vaccine ETS Requiring Vaccination for Employers with 100 or More Employees

On November 4, OSHA released its COVID-19 vaccine ETS (Emergency Temporary Standard), requiring many employers to implement COVID-19 mandates for vaccination and testing.  While legal challenges are expected, it is critical for employers to understand the requirements, develop polices, and be prepared to comply. 

The ETS applies to all private employers with 100 or more employees, but does not apply to employees who work from home, work in a location where no other individuals are present, or who work exclusively outdoors.  Covered employers will have until January 4 to ensure that their work forces are vaccinated.  But most other requirements of the ETS must be implemented by December 5.  Employees who are not vaccinated must submit to weekly coronavirus testing and mask wearing while in the workplace.  It is up to employers to decide whether employees can opt out of vaccination through the weekly testing.  However, employers are not required to provide or pay for testing, unless required by a union contract or other local law.  Employers are also required to provide up to four hours of paid time off to be vaccinated, as well as sick leave to recover from vaccine side effects. 

Employers will need to plan for employees claiming religious and medical exemptions. 

 When an employer is on notice that an employee holds a sincere religious belief, practice, or observance preventing the employee from obtaining a COVID-19 vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship.  This includes accommodation requests from employees preferring an alternative version or specific brand of COVID-19 vaccine available to the employee.   

A medical exemption would require a note from the employee’s doctor. 

 Erickson | Sederstrom’s experienced employment and labor law attorneys are ready to help manage these COVID-19 vaccination issues in the workplace.  Please do not hesitate to contact one of our attorneys.  Erickson|Sederstrom’s employment law attorneys can be reached at (402)397-2200.