Texas Bar Journal May 2022

TAKE YOUR BEST SHOT

What employers should know about the COVID-19 vaccine mandate

Written by Stacey Cho Hernandez

Nothing about the pandemic has been easy. Some hoped the availability of vaccines would bring about a tidy end to the pandemic. But whether to get vaccinated quickly became a divisive issue, and employment lawyers have grappled with the legal implications of the debate.

Enter the Path Out of the Pandemic: President Biden’s COVID-19 Action Plan, which outlined several mandates.¹ Below is a brief summary of each mandate:

• On September 9, 2021, President Joe Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, directing executive agencies to begin amending federal contracts to require federal contractors to take specific actions to combat COVID-19, and to, in turn, require covered subcontractors to take the same actions. On September 24, 2021, the Safer Federal Workforce Task Force released “Guidance for Federal Contractors and Subcontractors.” The federal contractor mandate required covered employers to develop and enforce a mandatory COVID-19 vaccination policy.

• On November 5, 2021, the Centers for Medicare & Medicaid Services, or CMS, issued its healthcare mandate in an interim final rule, or IFR, requiring most Medicare and Medicaid certified providers and suppliers to develop and implement a mandatory COVID-19 vaccination policy.

• On November 5, 2021, the Occupational Safety and Health Administration, or OSHA, issued the “Emergency Temporary Standard on Vaccination and Testing,” or ETS, governing employers with 100 or more employees. The ETS mandated covered employers to “develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers” that require unvaccinated employees to undergo weekly COVID-19 testing and to wear a mask during the workday. Unlike the federal contractor mandate and the CMS mandate, the OSHA ETS allowed for a testing option for unvaccinated employees.

Each of the mandates also permitted limited exemptions to accommodate a valid medical, disability, and request.² Phased deadlines by which employers were required to comply with certain facets of each mandate were established.

The mandates were met with divergent reactions followed almost immediately by pushback and legal challenges. Two of the rules—the ETS issued by OSHA, which covered employers with over 100 workers, and the CMS healthcare mandate, specific to the healthcare industry—were quickly blocked by various temporary injunctions nationwide. Several parties sought emergency relief from the U.S. Supreme Court, which entertained accelerated oral arguments for both the OSHA ETS³ and CMS healthcare mandate⁴on January 7, 2022. On January 13, 2021, the Supreme Court issued rulings on both of the mandates further explained below.

Current Status of the OSHA ETS
The Supreme Court held that the vaccine-or-testing mandate should be stayed because OSHA likely lacks the statutory authority to adopt the vaccine-or-test mandate in the absence of an unmistakable delegation from Congress.⁵ The court found that the applicants were likely to succeed on the merits of their claim and it granted the stay. This decision prohibits the implementation of the OSHA ETS. However, the OSHA ETS was a temporary measure and was only designed to remain in place for six months while comments were elicited, after which it was to be replaced by a permanent standard. A permanent standard could still be forthcoming. On January 25, 2022, OSHA formally withdrew the ETS and issued the following statement:

• Although OSHA is withdrawing the vaccination and testing ETS as an enforceable emergency temporary standard, the agency is not withdrawing the ETS as a proposed rule. The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard. OSHA strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.⁶

Employers would be wise to heed the secretary of labor’s warning, which seems to indicate increased enforcement efforts on the horizon.

Employment lawyers should continue to advise their clients and employers to gather vaccine status information from their employees and develop the required vaccination roster. The U.S. Equal Employment Opportunity Commission confirmed that employers can lawfully ask employees their vaccination status without violating federal anti-discrimination laws (provided the question is limited to a yes-or-no response). Employers will need to decide whether to develop vaccine or testing policies tailored and adapted for the unique needs of their workforce. While no more looming deadlines remain, employers should continue to assess the workplace and feel free to institute a policy even if it is not required (yet). Employers should also continue to require employees to report positive COVID-19 tests, remove employees who have tested positive, and provide paid leave for employees to get vaccinated. Employers should also develop a robust reasonable accommodation policy to consider religious exemptions and disability accommodations and designate a team of employees to coordinate this process.

Employers will also need to consider how to keep their non-vaccinated employees safe. That may include policies implementing face covering, social distancing, and restrictions on travel. Employers should continue to follow Centers for Disease Control and Prevention guidance on mask wearing and recommended quarantine periods for positive COVID-19 cases or exposure. Employers should also continue to monitor OSHA standards. Remember, even though the ETS is gone, employers are still obligated to keep a safe workplace.

Current Status of the CMS Healthcare Mandate (IFR) In a separate decision, the Supreme Court upheld the requirement that healthcare workers be vaccinated to work at medical facilities receiving Medicare and Medicaid funding.⁷ The requirement does not have a daily or weekly testing option for unvaccinated workers but does permit exemptions for individuals who cannot be vaccinated against COVID-19 for religious and disability related reasons or medical contraindications. The court held that the U.S. Department of Health & Human Services, or DHHS, has the authority to issue such a mandate because federal law allows DHHS to impose conditions on federal Medicaid and Medicare funds.

The Supreme Court’s ruling stayed preliminary injunctions applicable to 24 states involved in the litigation. Twenty-five states were already subject to enforcement. However, the state of Texas had its own showdown with the CMS healthcare mandate in Civil Action No. 2:21-cv-00229-Z, in the U.S. District Court for the Northern District of Texas, Amarillo Division. On January 14, 2022, CMS filed a motion to stay a preliminary injunction that was issued against the state of Texas. On January 19, 2022, the district court dismissed the state’s claims. Accordingly, the CMS IFR is enforceable nationwide, including in Texas.

On January 20, 2022, CMS issued new guidance setting for the following compliance deadlines for Texas:⁸

• By February 22, 2022, covered facilities in Texas must have their vaccination processes and plans in place, and all covered staff must at least have taken their first dose of a vaccine or have a pending exemption request to comply with the CMS rule.

• By March 21, 2022, all covered staff must be fully vaccinated against COVID-19 or have received an exemption to comply with the CMS rule.

Employment lawyers should assist their clients with confirming whether the CMS IFR applies to them. If covered, the facility should determine and continue to track vaccination status of its staff. They should also have implemented applicable tracking, compliance, recordkeeping, documentation, and training requirements concerning all employees. Employers of covered facilities must also prepare for religious and disability accommodation requests and promptly process them to comply with CMS and other federal laws. Employers must ensure they document their processing of these requests as well.

State Law Concerns—Texas
Last but not least, some consideration should be given to Gov. Greg Abbott’s Executive Order GA-40, which restricts employers from compelling any individual to receive a COVID-19 vaccination if that individual “objects … for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”⁹ The order refers to the penalties set forth in Texas Government Code § 418.173 as being available against any violators. On December 8, 2021, the Texas Workforce Commission doubled down on Executive Order GA-40 and created a hotline for employees to report a violation of the order.¹⁰ CMS has indicated that its requirements preempt any state law, and the ramifications for violating the CMS rule can be tremendous. Regardless, covered facilities and employers should at least be prepared for any legal challenges concerning the impact of Texas law on the CMS IFR.^TBJ

STACEY CHO HERNANDEZ is a partner in Carter Arnett. She is a sought-after legal adviser for employers in all industries and trusted problem solver for a broad range of employment law matters.

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