Less than three days after the Occupational Health and Safety Administration (“OSHA”) released its November 4, 2021, emergency temporary standards on COVID-19 vaccines and testing (the “ETS”), on November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the ETS, citing the “grave statutory and constitutional issues with the Mandate.” As previously reported, the OSHA ETS mandates that by January 4, 2022, all employers with 100 or more employees have its employees be vaccinated or subject to COVID‑19 testing requirements by January 4, 2022. The ETS also contains a host of other compliance obligations that employers would need to put in place by December 5, 2021, if the ETS survives legal challenge.
The day after the ETS was released, 26 state Republican attorneys general filed at least four separate lawsuits in the Fifth, Sixth, Eighth, and Eleventh U.S. Circuit Courts of Appeals. Business and industry groups also filed separate lawsuits challenging the ETS, including a suit filed in the U.S. Court of Appeals for the Fifth Circuit (“Fifth Circuit”) by a group of companies led by BST Holdings, L.L.C. (the “BST Suit”).
On November 6, 2021, the Fifth Circuit issued a several paragraph order in the BST Suit, temporarily staying the ETS pending further review. The court gave the federal government until November 8, 2021, to respond.
The court’s order is not a final ruling. The temporary stay is just that—a temporary halt to implementation of the ETS. Under current federal court rules, the numerous cases filed against the ETS will be consolidated and heard by a single federal appellate court that will be chosen by a lottery system. Before the lottery is held, circuit courts can still rule on requests to halt the ETS, but the circuit court selected through the lottery system will have the ultimate power to lift the stay.
While the fate of the ETS remains unclear, employers covered by the ETS should consider continuing to prepare for the ETS, as the stay could be lifted in the coming weeks and the December 5, 2021 and January 4, 2022 ETS compliance deadlines are quickly approaching.
Federal Contractors Still Need to Comply with Executive Order 14042, Including New January 4, 2022 Vaccination Deadline
Although the ETS has been temporarily halted, Executive Order 14042 (“EO 14042”) remains intact and in full force and effect, as it has not been halted by any courts to date. Accordingly, covered federal contractors and subcontractors should continue preparing for full compliance with EO 14042.
Contractors were, however, given some breathing room last week when President Biden issued a Fact Sheet on November 4, 2021, announcing that the December 8, 2021 COVID-19 vaccination deadline under EO 14042 has been extended to January 4, 2022, to coincide with the OSHA ETS deadline for vaccinations. The Biden Administration also clarified that contractors will only have to comply with one set of federal COVID-19 laws, where federal contractors subject to EO 14042 will not have to comply with the ETS or CMS rules in any workplaces subject to or otherwise covered by EO 14042.
The Biden Administration Fact Sheet provides as follows:
Streamlining Implementation and Setting One Deadline Across Different Vaccination Requirements: The rules released today ensure employers know which requirements apply to which workplaces. Federal contractors may have some workplaces subject to requirements for federal contractors and other workplaces subject to the newly-released COVID-19 Vaccination and Testing ETS. To make it easy for all employers to comply with the requirements, the deadline for the federal contractor vaccination requirement will be aligned with those for the CMS rule and the ETS. Employees falling under the ETS, CMS, or federal contractor rules will need to have their final vaccination dose – either their second dose of Pfizer or Moderna, or single dose of Johnson & Johnson – by January 4, 2022. This will make it easier for employers to ensure their workforce is vaccinated, safe, and healthy, and ensure that federal contractors implement their requirements on the same timeline as other employers in their industries. And, the newly-released ETS will not be applied to workplaces subject to the federal contractor requirement or CMS rule, so employers will not have to track multiple vaccination requirements for the same employees.
This means that contractors with workplaces subject to the EO 14042 will not be subject to the ETS for those same workplaces, assuming the ETS survives legal challenge. Contractors with 100 or more employees, however, may have to contend with the ETS if they have employees who are not subject to EO 14042. So, for example, if a federal contractor with over 100 employees has a workplace subject to EO 14042, that contractor need only comply with EO 14042 for employees at that facility, and not also the ETS. If that same contractor had another workplace that was not covered by EO 14042, then that facility could be subject to the ETS. Recall, however, that a workplace where a covered contractor employee is “likely to be present” causes all employees in that workplace to become subject to EO 14042.
The White House guidance also indicates that the new January 4, 2022 vaccination deadline actually requires contractors to have covered employees “fully vaccinated” by January 18, 2022, under EO 14042. The White House guidance says that employees must receive their final COVID-19 vaccination dose by January 4, 2022. Given that “fully vaccinated” is defined in the Safer Federal Workforce Task Force’s (the “Task Force”) guidance as two weeks after an employee receives his or her final COVID-19 vaccination dose, the deadline for employees to be fully vaccinated is now January 18, 2022.
The extension of the vaccination deadline comes on the heels of the Task Force issuing new FAQs last week signaling flexibility with the previous December 8, 2021 vaccination deadline. The Task Force has not yet updated its guidance on the new January 4 deadline, but the U.S. General Services Administration (“GSA”) has indicated that it plans to be flexible on the January 4 deadline as long as contactors are demonstrating “progress in meeting the requirements” of EO 14042. The GSA stated as follows:
Should contractors sign the modification to add the clause if they don’t think they can get all covered contractor employees vaccinated by January 4, 2022 deadline?
Yes, GSA views acceptance of the modification as an agreement that the contractor intends to comply with the terms. The Federal Government is using our human resource departments to take steps to implement the Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees and expects our contractors to do the same. If the covered contractor demonstrates progress in meeting the requirements of the clause, GSA will work with contractors to ensure they have the time and opportunity to achieve full compliance.
The Task Force will likely encourage other federal agencies to be flexible on the new deadline for contractors operating in good faith.
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