Updated 1/14/2022
The enforcement dates and legal landscape surrounding three mandatory vaccination rules are rapidly shifting from day-to-day. We will update this page with the latest legal news regarding each of the vaccine mandates and any change in enforcement rules.
OSHA ETS on Vaccination and Testing
The ETS was released on November 4, 2021, with an initial effective date of November 5, 2021. Many states, private employers, labor unions, and other individuals immediately filed suit. On November 12, 2021, the Fifth Circuit stayed enforcement and implementation of the ETS pending judicial review.
On January 13, 2022, the U.S. Supreme Court blocked OSHA’s vaccine mandate from being enforced indefinitely. The Supreme Court reinstated the temporary injunction from the lower court. This means that the OSHA vaccine mandate, which would apply to private employers with more than 100 employees, is currently not in effect.
In response to the ruling, U.S. Secretary of Labor issued a statement, which read in part:
We urge all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.
Regardless of the ultimate outcome of these proceedings, OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.
On June 21, 2021, OSHA adopted a Healthcare Emergency Temporary Standard (Healthcare ETS) protecting workers from COVID-19 in settings where they provide healthcare or healthcare support services. Among other things, the Healthcare ETS required employers to provide certain covered healthcare workers with paid leave for certain covid-related absences and required covered healthcare employers to implement an extensive Covid-19 plan. On December 27, OSHA announced that it is withdrawing the non-recordkeeping portions of the Healthcare ETS (read the full announcement here), but encouraged healthcare employers to voluntarily follow the ETS requirements.
CMS Vaccine Mandate
On January 13, 2022, in a 5-4 decision, the U.S. Supreme Court lifted lower court injunctions that had blocked enforcement of the Centers for Medicare and Medicaid Services Interim Final Rule requiring healthcare workers to be vaccinated.
Employers who are covered by the CMS mandate must take steps to comply with its requirements, including enacting mandatory vaccination policies by January 27, 2022, and ensuring that all staff have completed the primary series of the Covid-19 vaccine by February 28, 2022.
Federal Contractor Vaccine Mandate
A federal district judge in Georgia issued a nationwide preliminary injunction on December 7 against the Federal Contractor Vaccination Mandate, preventing enforcement of the vaccine mandate that was established for federal contractors.
Here is the most updated information regarding the Federal Contractor Vaccine Mandate:
- On December 17, the Eleventh Circuit denied the administration’s request to dissolve the nationwide preliminary injunction.
- The Eleventh Circuit set an expedited schedule for briefing on the merits of the appeal extending into late January.
- The Safer Federal Workforce Task Force announced that 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”).
Head Start Program Vaccine and Masking Mandate
On November 30, 2021, the Head Start Program Performance Standards were revised to include staff vaccination and universal masking requirements for all individuals 2 years and old participating in Head Start and Early Head Start programs (see also Interim Final Rule implementing the mandate).
Here is updated information on the Head Start and Early Head Start vaccine and mask mandates:
- On December 31, 2021, the United States District Court for the Northern District of Texas temporarily enjoined implementation and enforcement in Texas.
- On January 1, 2022, the United District Court for the Western District of Louisiana preliminarily enjoined implementation and enforcement in the following 24 states: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wyoming.
[1] North Carolina OSHA announced on November 10 that the department will not adopt or enforce the new OSHA ETS until all of the current lawsuits challenging the ETS have been resolved.
