Federal vaccine and testing mandates: The current landscape

No. The Occupational Safety and Health Administration (OSHA) announced it will withdraw the ETS, thereby making the litigation in the 6th Circuit moot. Instead it will focus on crafting a proposed permanent rule, based on public comments and likely what it has gleaned from the January 13 Supreme Court ruling that stayed the ETS.

In 2021, the Biden administration issued three vaccine mandates:

1. A mandate that private employers with at least 100 employees develop, implement and enforce a mandatory COVID-19 vaccination or testing policy. This mandate was put in place via a regulation from the Occupational Safety and Health Administration (OSHA) known as the OSHA Emergency Temporary Standard (ETS).
2. A mandate that federal contractors require their employees to be vaccinated.
3. A mandate that health care employers who accept Medicare or Medicaid funding require their employees to be vaccinated. This mandate was put in place via regulations from the Centers for Medicare & Medicaid Services (CMS).

The January 13 ruling:

• Stayed (or paused) implementation of the private employer mandate while litigation was to proceed in the lower court
• Lifted the lower-court stay on implementing the health care employer mandate. This means most health care employers must now begin the process of requiring employees to get vaccinated as a condition of employment.

The federal contractor mandate remains stayed while litigation in the lower court proceeds.

Yes. Under the Occupational Health and Safety Act employers have a general duty to maintain safe workplaces. Penalties for failure to comply with the general duty clause can equal over $14,000 per violation and up to $145,000 for willful or repeated violations.

Employers should be aware of the patchwork of city and state laws out there — both requiring and prohibiting vaccine mandates. These are also impacted by ongoing litigation, so employers should consult with their counsel to determine what state or local requirements may apply to them. Also, some states have their own state-level OSHA programs. Once OSHA passes a permanent employer vaccine mandate rule, those states will need to have rules that are at least as protective of employees as the federal rule.

No. Unless an employer is subject to a state or local law that limits its ability to do so, they are free to require their employees to show proof of vaccination or a negative COVID-19 test to come to work. Employers should work with their counsel to determine whether state or local laws affect their ability to implement their own policy.

Most medical experts agree that vaccinations are the best way to stop the spread of COVID-19 and prevent it from causing serious illness or death. So requiring vaccination or testing at work can have several benefits:

• It can help keep your employees safe.
• It can help employees feel comfortable returning to the workplace. Many employees are concerned about contracting or spreading COVID-19 and want their employers to implement policies and practices to keep them safe.¹
• It can help cut down on medical benefit costs.
• It can reassure customers that yours is a safe workplace to enter.
• It can demonstrate to stakeholders that your employees' well-being is a top priority.
• It can help you comply with the OSHA policy that imposes a general duty on employers to keep their employees safe at work.

1 McKinsey Consumer Health Insights, June 14, 2021.

All health care employers covered by the mandate should begin working with their counsel to develop a policy to comply with the mandate, if they haven't done so already. Most health care workers are now required to get vaccinated before coming to their workplace. Although there is no automatic option to offer testing instead, employers must consider valid requests for religious and medical accommodations, which may include testing if a reasonable accommodation.

CMS revised the deadlines for vaccination in states where the health care mandate had previously been stayed: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming. In these states, workers now need to get their first shot by February 13 and their second shot by March 15. Deadlines for workers in Texas, where a lawsuit against the mandate was dismissed on January 19, have not yet been announced.

Workers in the remaining states must receive their first shot by January 27, and their second shot by February 28.

The OSHA ETS required that employers with at least 100 employees develop, implement and enforce a mandatory COVID-19 vaccination policy. In developing an acceptable policy, employers could either:

• Require all employees provide proof of vaccination OR
• Allow employees to choose between showing proof of vaccination or proof of a negative COVID-19 test at least weekly.

To implement their policy, employers must:

• Require and preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated, and of test results for unvaccinated employees, if the employer allows testing. Records are considered confidential medical records under the Americans With Disabilities Act and must be kept for duration of the ETS.
• Maintain a roster showing each employee's vaccination status to fulfill certain disclosure requirements of the ETS.

Unum Vaccine Verifier is no longer available for sale and purchase contracts will not be renewed. Many Vaccine Verifier customers are no longer using the solution, but we will provide support through February 2023 for those who need it.