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Guess What’s Back (Back Again)

E-mployment Alert

Smart Summary

  • After an initial stay in the courts, OSHA’s “vax-or-test” rule is now set to go into effect.
  • Large employers have until January 10 to get policies in order and until February 9 to roll out testing.
  • Multiple federal court orders are currently blocking the enforcement of CMS’s vaccine rule in 25 states, including Ohio, while the rule will be allowed to go into effect in the other 25 states.
  • This will likely end up in the U.S. Supreme Court, but in the meantime employers would be wise to consider compliance with these rules now, whether in anticipation of the upcoming mandate or for other strategic and safety reasons.

Vax is back; tell a friend . That’s right! OSHA’s vax-or-test rule was halted by a federal court in November, but on Friday evening, the Sixth Circuit announced that it would lift that stay and allow the rule to go into effect.

And that’s not all. Two other courts handed down rulings late Friday impacting the federal contractor vaccine mandate and the CMS Medicare/Medicaid rule. Below, we’re breaking down everything employers need to know.

1. OSHA’s Large Employer “Shot-or-Test” ETS

With the stay lifted, the rule’s masking, vaccine, and testing obligations are back on, at least for now. But OSHA announced an extension of its previous January 4, 2022, deadline. Now, employers will have until January 10, 2022, to get their policies in place and until February 9, 2022, to roll out testing.

But the future of the rule remains uncertain. Within hours of the Sixth Circuit’s decision, a number of groups filed an emergency application to the Supreme Court for expedited review and another stay. Notably, Justice Kavanaugh, a Trump appointee, oversees the Sixth Circuit and will receive the petition.

While we wait for the Supreme Court battle to play out, we suggest that large employers plan for the rule to take effect in January.

2. Federal Contractor Vaccine Mandate

The Eleventh Circuit was also busy this weekend. That court is tasked with reviewing the challenges to the vaccine mandate applicable to federal contractors. On Friday night, it upheld the temporary stay currently preventing that rule from going into effect; however, the battle is far from over. As with the private employer rule, the Biden administration could petition the Supreme Court for emergency review, and the Eleventh Circuit set an expedited schedule for full briefing in January to decide whether the stay will become permanent.

3. Centers for Medicare and Medicaid Services Vaccine Rule

In November, a federal court in Louisiana imposed a nationwide block on the federal government’s enforcement of CMS’s rule. Last week, the Fifth Circuit upheld that injunction, but only as to the states that are parties to the suit. Those states include Arizona, Alabama, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia.

The rule is also currently stayed in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, Texas, South Dakota, and Wyoming under similar federal court orders; however, it will now be allowed to go into effect in the remaining 25 states.

4. What’s Next and How Should I Prepare?

Nothing is finalized. All of the blocks that are currently in place are “temporary injunctions,” which as their name suggests are temporary. After appeals are finalized, the courts will consider whether to make those temporary injunctions permanent. Then we could see one more round of appeals to the Supreme Court.

Despite the uncertainty, we encourage employers to think about compliance now. For private employers, there are only 15 working days before the rule is set to take effect. Even if you aren’t compelled to implement a vaccination or testing policy, you may nevertheless want to implement one for safety or strategic reasons. Unlike other states, there is currently no Ohio rule preventing private employers from requesting proof of vaccination status and/or implementing a mandate. But employers should pay attention to the specific state laws in place where they do business. Some states (e.g. Montana, Tennessee, etc.) have rules in place that limit employers’ ability to require proof of vaccine status or mandatory vaccinations. 

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