Since the COVID-19 vaccination was made available to the public in late 2020, the topic of vaccination has been widely discussed across the country including in the daily news, by governments and agencies, in the courts, in communities, and in the workplace. From the very beginning, federal, state, and local governments/agencies have engaged in campaigns to encourage vaccination; passed laws mandating vaccination in the workplace, public places, government buildings, and elsewhere; and incentivized vaccination. Indeed, President Biden’s Administration made COVID-19 vaccination a predominant part of its national strategy to combat the pandemic.
All of the efforts undertaken to increase vaccination rates have resulted in a vaccination rate among eligible individuals of approximately sixty-five percent in the U.S. That said, the laws, guidance, and rules have not come without legal challenges, court decisions and rulings, opposition, publicity, and the implementation of various state laws prohibiting or restricting businesses’ and employers’ ability to mandate vaccination. As we head into 2022, there is a resulting patchwork of laws, guidance, and rules regarding vaccination and companies continue to face the challenge of implementing and updating policies that are legally-compliant and practical.
At the federal level, there are several key mandates that have been introduced, faced legal challenges, and now exist in varying legal statuses.
First, Executive Order 14042, which requires that covered federal contractors include language in their contracts mandating that employees be vaccinated unless they are granted an exemption, is currently on hold nationwide.
Second, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) on November 5, 2021 which required employers with one hundred or more employees to implement a mandatory COVID-19 vaccination policy or provide a vaccination-or-test alternative. The Supreme Court of the United States stayed enforcement of the ETS pending further review. OSHA subsequently withdrew the ETS effective January 26, 2022, although it indicated an intent to finalize a narrower permanent standard later in the year.
Third, the Omnibus COVID-19 Health Care Staff Vaccination mandate, requiring health care providers to establish a process or policy for staff to be fully vaccinated unless granted an exemption, is currently in effect after the injunctions imposed by the Louisiana and Missouri district courts were lifted by the Supreme Court on January 13, 2022. The Centers for Medicare and Medicaid Services (CMS) has updated its guidance/materials, including an implementation timeline for each state. In addition, there are other federal vaccine mandates implemented by government agencies and other governing bodies.
State and local mandates
On the state and local level, lawmakers have implemented COVID-19 vaccine mandates in certain workplaces. Many states that have imposed COVID-19 vaccinations have focused on industries where employees are caring for vulnerable populations such as healthcare, long-term care, and education. For example, in Connecticut, pursuant to executive orders issued by the governor, all state hospital and long-term care employees must be fully vaccinated against COVID-19 and receive their COVID-19 booster shots unless granted an exemption (which mandate may change). All Connecticut state employees, as well as staff of all childcare facilities and pre-kindergarten through grade 12 schools must also be vaccinated or submit to COVID-19 testing.
Similarly, the governor of Illinois has issued executive orders requiring vaccinations or testing for all healthcare workers, state employees working in state-operated congregate settings, preschool through grade 12 teachers and staff, and higher education personnel/students. Other states, such as California and Massachusetts, have imposed similar vaccination programs. In December of 2021, New York City became the first major city to implement a COVID-19 vaccine mandate for all workers who perform in-person work or interact with the public in the course of business.
On the other hand, several states have banned or limited employers’ ability to implement vaccination mandates. For example, in November, Florida passed a law prohibiting private employers from imposing a COVID-19 vaccination mandate without allowing employees to opt-out of the mandate pursuant to one of five exemptions (medical reasons, religious reasons, COVID-19 “immunity,” periodic testing, and use of personal protective equipment). Also, in November, the governor of Tennessee signed a bill prohibiting private businesses from compelling individuals to provide proof of vaccination. While not all state bans and restrictions on vaccination mandates apply to the private sector, there are several that do apply.
In addition to the above vaccination, masking, and prevention mandates, other governmental requirements have also been promulgated and remain in effect. For example, OSHA rules and guidance on safety and health measures related to mitigating exposure and risk of COVID-19 in the workplace remain in place including reporting and recording obligations. In addition, guidance and recommendations from public health authorities such as the Centers for Disease Control and Prevention continue to be updated and issued based on the latest information and data.
What does this mean for employers in 2022? While this year may be a year of transition, at present, many of the rules, laws, guidance, and recommendations remain in place. Therefore, employers may want to ensure that they are up-to-date at the local, state, and federal level; understand changes that may be on the horizon with regard to applicable laws in their industry; and remain flexible in terms of their policies and procedures. Employers may also want to remain in communication with employees on these issues, which may include holding group meetings to update employees and gather input, conducting surveys, or soliciting input from managers and supervisors. This area of the law is constantly evolving; therefore, employers should consider consulting competent legal counsel with regard to the most up-to-date information.