regulatory

COVID-19 Vaccination and Testing Requirements in the Workplace

On September 9, 2021, President Joe Biden announced a new national strategy, “Path Out of the Pandemic” to address the on-going impacts of COVID-19. The announcement outlined requirements for businesses with 100 or more employees to develop and implement COVID-19 vaccine and testing protocols. On the same day, President Biden issued Executive Order 14042 on “Ensuring Adequate COVID Safety Protocols for Federal Contractors” which mandated all federal contractors and subcontractors to abide by workplace safety protocols set forth by the Safer Workforce Federal Taskforce, including mandatory vaccination of all employees.
 

Litigation Status

U.S. Occupational Safety and Health Administration’s COVID-19 ETS
On Thursday, January 13, the U.S. Supreme Court ruled in a 6-3 decision to block the wide-sweeping mandate that that private businesses with 100 or more employees must implement a COVID vaccine or testing policy.

On January 26, 2022, after evaluating the U.S. Supreme Court decision to stay the Vaccination and Testing ETS, OSHA withdrew the standard as an enforceable ETS. Although OSHA withdrew the Vaccination and Testing ETS as an enforceable ETS, OSHA is not withdrawing the ETS as a proposed rule and will continue with the notice-and-comment rulemaking commenced by the vaccination and Testing ETS.

Federal Contractor Vaccine Mandate
On December 13th, 2021 the federal government appealed U.S. District Court Judge R. Stan Baker’s preliminary injunction against the nationwide enforcement of the federal contractor mandate to the Eleventh Circuit Court of Appeals. The federal government also asked the Eleventh Circuit to stay the injunction issued by the district court, pending resolution of its appeal. On December 17th, the Eleventh Circuit denied the federal government’s request for a stay of the district court’s injunction.

On January 21, 2022 the same federal court issued another order explaining that the injunction stayed the vaccine requirement only. All other aspects of the protocols set forth by the Safer Workforce Federal Taskforce must be followed. Oral arguments for the case are scheduled for April 4, 2022.

Congressional Action Status
The Congressional Review Act (CRA) provides a tool through which Congress can invalidate an agency rule in its entirety. On December 9, the U.S. Senate passed their resolution of disapproval of the OSHA Vaccine ETS, with all Senate Republicans and two Senate Democrats (Sen. Manchin and Sen. Tester) voting in favor of the resolution. In the House, all Republican members are co-sponsors of the resolution, but no Democrat members have endorsed it yet, and the House has not voted on their resolution.

However, invalidating a rule through the CRA procedure requires not only that both the U.S. House of Representatives and Senate pass a resolution of disapproval, but also that the president sign the resolution (or for Congress to override a presidential veto). With the current makeup of Congress and the White House, it’s exceedingly unlikely that the Democratic majority would allow a CRA disapproval resolution to pass and that President Biden would sign the disapproval resolution.

For questions related to the CRA challenge to the ETS, contact Brian Callahan, Senior Director of Legislative Affairs, at bcallahan@nacd.com.

 

Next Steps

Per the order set forth by U.S. District Court Judge R. Stan Baker and the decision made by the Eleventh Circuit to deny the federal government’s appeal, the Biden Administration’s mandate that all federal contractors and subcontractors ensure that their employees and others working in connection with the federal contracts are fully vaccinated against COVID-19 may not be enforced. The status of this mandate is on hold until further action is taken by the courts. If the mandate is upheld by the Eleventh Circuit, implementation of the rule may be delayed.

The Safer Workforce Federal Taskforce (SWFT) has updated its website stating, “For existing contracts or contract-like instruments (hereinafter “contracts”) that contain a clause implementing requirements of Executive Order 14042: The Government will take no action to enforce the clause implementing requirements of Executive Order 14042, absent further written notice from the agency, where the place of performance identified in the contract is in a U.S. state or outlying area subject to a court order prohibiting the application of requirements pursuant to the Executive Order (hereinafter, “Excluded State or Outlying Area”). In all other circumstances, the Government will enforce the clause, except for contractor employees who perform substantial work on or in connection with a covered contract in an Excluded State or Outlying Area, or in a covered contractor workplace located in an Excluded State or Outlying Area.

Currently Excluded States and Outlying Areas: All of the United States and its outlying areas, including:

  • The fifty States;
  • The District of Columbia;
  • The commonwealths of Puerto Rico and the Northern Mariana Islands;
  • The territories of American Samoa, Guam, and the United States Virgin Islands; and
  • The minor outlying islands of Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Atoll.”

 

Workplace Safety Compliance Resources

Federal Contractors

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