The Biden Administration has extended the deadline for federal employees and covered contractor employees to be vaccinated until January. Several federal courts have temporarily stayed vaccine requirements for health care workers in both facilities receiving Medicare and Medicaid funding and for employees of federal contractors. The Occupational Safety and Health Administration has extended the deadline for comments on the COVID-19 vaccination and testing emergency temporary standard (ETS) as well as the workplace heat hazard advance notice of proposed rulemaking.
Vaccine Deadlines Extended – Federal employees had a deadline of November 22nd to be vaccinated for COVID-19 or apply for an exemption based on medical or religious reasons. As of the deadline, 92% of federal employees were vaccinated and more than 95% were compliant with the mandate. The Biden Administration has decided to extend the deadline for compliance until January 2022. The administration indicated that “agencies should initiate the enforcement process with an appropriate period of education and counseling”, that would include information on vaccination benefits. If employees failed to demonstrate progress towards compliance, agencies could issue a reprimand letter followed by a short suspension usually not more than 14 days. Based on the needs of agencies, either removal or a longer second suspension could follow the initial suspension if there was still noncompliance.
The Safer Federal Workforce Task Force announced that it was delaying the date by which covered contractor employees had to be fully vaccinated until January 18, 2022. The deadline initially was December 8th, which was pushed back until January 4th and now until January 18th.
Courts Stop Vaccine Mandates – Four US District Courts have issued temporary injunctions against vaccine requirements for health care workers and federal contractors. A US District Court in for the Eastern District of Missouri decided to temporarily halt the vaccine requirement for health care workers in facilities that receive Medicare and Medicaid funding. The preliminary injunction issued by the Missouri District Court applies to health care workers in the following 10 states that brough the lawsuit: Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, North Dakota, and New Hampshire. A US District Court for the Western District of Louisiana approved a preliminary injunction covering the balance of the country in a similar case challenging the vaccine mandate for health care workers.
A US District Court in Kentucky issued a temporary injunction against the vaccine requirement for federal contractors. The preliminary injunction issued by the Kentucky District Court applies to employees of federal contractors in the 3 states that filed this action: Kentucky, Ohio, and Tennessee. Subsequent to the temporary injunction issued by the Kentucky court, the US District Court for the Southern District of Georgia provided a nationwide temporary injunction against the federal contractor vaccine mandate. The court stated that since it allowed a national trade association to intervene, it was necessary to apply the injunction throughout the country.
The health care workers cases concerned a challenge to an interim final rule issued by the Center for Medicare and Medicaid Services (CMS) requiring COVID-19 vaccination for health care workers in Medicare and Medicaid participating facilities. The Missouri District Court believed that the vaccine requirement exceeded the authority delegated by Congress to CMS. The District Court noted that economic cost of the mandate is “overwhelming” and beyond the first year CMS compliance estimate of $1.38 billion since there were additional costs resulting from facilities either closing or limiting services and a “significant exodus of employees that choose not to receive a vaccination.” The court questioned the emergency since the mandate was announced almost two months before the agency issued and there is a one-month delay before its effective date. The court also was concerned that vaccination policies should be determined by the states and that in issuing the interim final rule, CMS may have violated the Administrative Procedure Act (APA).
The federal contractor cases concerned a challenge to the guidance issued pursuant to Executive Order 14042 by the Safer Federal Workforce Task Force requiring initially that employees of federal contractors by vaccinated against COVID-19 by December 8th. The requirement only applied to new contracts or extensions of existing contracts. In issuing the temporary injunction, the Kentucky court believed that it was likely that President Biden exceeded his “congressionally delegated authority to manage the federal procurement of goods and services to impose vaccines on the employees of federal contractors and subcontractors.” The Court also expressed concern that vaccine policy is an area traditionally reserved to the states and not to the federal government. The federal government has indicated that based on these court decisions, it will not enforce the vaccine requirement for employees of federal contractors.
The District Courts will be deciding whether to issue permanent injunctions in these cases and the decisions are expected to be appealed.
OSHA ETS Comment Period Extended - The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has extended the comment period for the COVID-19 vaccination and testing emergency temporary standard (ETS) by 45 days to Jan. 19, 2022. According to OSHA the extended comment period will “allow stakeholders additional time to review the ETS and collect information and data necessary for comment.” On November 5, OSHA issued the ETS covering employers with at least 100 employees and requiring them to enforce a mandatory COVID-19 vaccination policy or require employees to undergo regular testing and wear a mask while at work.
The United States Court of Appeals for the Fifth Circuit issued a stay prohibiting the enforcement of the mandate. There are a series of cases challenging the OSHA ETS that have been filed in federal courts and the United States Court of Appeals for the Sixth Circuit has been chosen by lottery to hear these cases. OSHA announced that it is suspending enforcement of the ETS due to the stay issued by the Fifth Circuit. The Biden Administration has asked the US Court of Appeals for the Sixth Circuit to allow the mandate to go into effect since it estimates that over six months it would prevent the deaths of 6,500 workers and about 250,000 hospitalizations.
OSHA Workplace Heat Hazard Comment Period Extended – The Labor Department’s Occupational Safety and Health Administration (OSHA) is extending until January 26, 2022, the period for submitting comments on the Advance Notice of Proposed Rulemaking (ANPRM) for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. The extension is designed to give additional time for review and comment. According to OSHA, there is not currently a “heat-specific standard to protect millions of workers in indoor and outdoor work settings from exposure to hazardous heat conditions.”
Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.