Federal COVID-19 Vaccine Mandates– Where Things Stand (For the Moment)

• OSHA Mandate: This mandate requires employers covered by OSHA’s jurisdiction with 100 or more employees to ensure that employees are either fully vaccinated or test weekly for COVID-19.  There are also policy, vaccine data collection, and masking requirements, among others. Original compliance deadlines were December 5 and January 4. This mandate was on a nationwide court-issued stay (pause) until this past Friday when the stay was lifted by an appeals court. The lifting of the stay has been appealed on an emergency basis to the US Supreme Court, which gave the federal government a deadline of December 30 for responding to the appeal. While we wait for a Supreme Court ruling, employers covered by OSHA with 100 or more employees should be aware that compliance deadlines have been pushed back to January 10 and February 9. After those dates, OSHA will begin to enforce the mandate, unless it is stayed again. See below for a summary of compliance steps.
• CMS Medicare and Medicaid Mandate: The CMS mandate applies to certain healthcare organizations that receive Medicare and/or Medicaid funding, regardless of the number of employees. This mandate requires covered employers to ensure all staff, except those granted medical and religious exemptions, are vaccinated. There is no option to allow employees to test instead of getting vaccinated. This mandate is currently stayed (paused) for the 25 states that are plaintiffs in lawsuits to block this mandate. NH is a party to one of the lawsuits, so the CMS mandate is stayed for NH employers. The other New England states are not parties to any of the lawsuits, so the CMS mandate is in effect for covered employers in those states.
  
• Federal Contractor Mandate: This mandate requires certain federal contractors and subcontractors to ensure that all employees (except those granted medical or religious exemptions) are vaccinated. Like the CMS mandate, there is no test-out option. This mandate is currently stayed (paused) on a nationwide basis pursuant to a federal court order.
  
  

With the pending litigation, the status of any of the mandates could change at any time. We continue to monitor this fluid situation.  In the meantime, remember that the federal mandate litigation does not prevent employers from implementing vaccine mandates in their own workplaces if they wish unless there is a state law that restricts employers’ discretion. Currently, there are many bills proposed in the New Hampshire legislature that, if passed, would prohibit vaccine mandates. Employers will want to keep an eye on the progress of these proposed bills.

 Who should keep reading?

If you have 100 or more employees, keep reading this alert to learn more about the OSHA mandate. Smaller employers can stop reading at this point, but be aware that OSHA is gathering information to write a final rule regarding vaccine mandates, and one of the things under consideration is extending the mandate to smaller employers – stay tuned!

More on the OSHA Mandate and Short-Term Planning for Compliance
January 10 is the new deadline for:

• Learning the vaccination status of every employee;
• Obtaining proof of vaccination status;
• Ensuring employees have received at least the 1^st shot in a 2-dose vaccine series;
• Maintaining a record and roster of vaccination status;
• Issuing a policy to implement the mandate, including certain information identified by OSHA for inclusion in the policy and procedures for requesting reasonable accommodation due to medical or religious concerns; and
• Requiring employees who are not fully vaccinated to wear masks while indoors or while riding in a vehicle with another employee.

 February 9 is the new deadline for:

• Obtaining proof from employees who previously received the 1^st shot in a 2-dose vaccine series that they have received their 2^nd shot.
• Implementing weekly testing for employees who are not fully vaccinated.

Resources: The full OSHA mandate (referred to as an “emergency temporary standard” or “ETS”), together with FAQs, sample policies, and other helpful information can be found on OSHA’s website: https://www.osha.gov/coronavirus/ets2.
The sample policies are not required – employers are free to adopt their own policies – but they are helpful starting points.

 Where to start? With so much uncertainty and the fast-approaching January 10 deadline, employers covered by the OSHA mandate would be wise to start taking certain steps toward compliance if they have not already done so. Consider:  

• Learning the current vaccination status of employees and obtaining proof of vaccinations;
• Determining and implementing a system for keeping vaccination records confidential;
• Deciding whether to allow a test-out option in lieu of vaccination and, if so, how to handle testing, the cost of testing, and keeping records of test results;
• Identifying whether you have any employees not covered by the OSHA mandate – for example, 100% remote employees who never work in person with others and employees who work exclusively outdoors are not covered.
• Preparing a draft policy, including a procedure for employees to use to request medical or religious exemptions, and the necessary forms for requesting one or both of those exemptions. If the Supreme Court stays the mandate, you might not issue the policy, but better to have it ready to issue, versus scrambling to prepare a complex policy at the last minute.