The End of One Mandate, The Continuation of Another
Many HR professionals and compliance officers, this one included, have put in what seems like a couple of years’ worth of work in on the OSHA vaccine, masking, and testing Emergency Temporary Standard’s mandate (ETS), whipsawing policies in cadence with OSHA’s implementation and enforcement, with the 5th Circuit stay of enforcement, with the 6th Circuit Court’s, overturn of the 5th Circuit Court’s stay, and with the Supreme Court’s final stay of the ETS which was the death knell to the ETS. Whew!
It’s hard to believe that it was only September 9th of 2021 when the president announced his Path Out of the Pandemic Action Plan, a plan with good intentions; it was, however, a plan that created a lot of chaos and divisiveness in the workplace.
The ETS mandate caused some employees to quit their jobs. It caused arguments and disagreements on how to enforce the rules in many workplaces. It forced companies to scramble to comply, then to pause, then to scramble again, in a helter-skelter dance of confusion and conflict. It did, however, boost the numbers of those who are now vaccinated.
On January 13th, the Supreme Court stayed the ETS. The sound of celebratory corks-popping of businesses that were opposed to the mandate could be heard across the nation. But before they lift their glasses to toast a celebration to a return to the “normal” pandemic craziness, they may want to wait to see if the emergency temporary standard becomes a permanent rule.
OSHA’s ETS was only designed to remain in place for six months, after which it must be replaced by a permanent standard to remain in effect. OSHA was accepting comments on the permanent vaccine-or-testing standard through January 19th. At this time, it is uncertain what OSHA will do next.
The ETS wasn’t the only mandate drama in the past few months. As you may know, three vaccination mandates were battling it out in court at one level or another: OSHA’s ETS vaccination, testing and masking mandate, the Centers for Medicare & Medicaid Services (CMS) vaccine mandate1, and the vaccine mandate for federal contractors and subcontractors contained in Executive Order 140422. The Supreme Court heard arguments and ruled on two: the ETS and the CMS.
While the OSHA’s ETS vaccination mandate was stayed by the Supreme Court and sent back to the 6th Circuit Court to rule on the merits of the case, the CMS vaccine mandate stay, in contrast, was lifted by the Supreme Court. The federal contractor mandate has been stayed in United States District Court for the Southern District of Georgia, tied up in the court process now.
Although the concerns with the ETS are all but finished, there are many threads left to pull on the quilt work of legal and regulatory issues that could cause the unraveling of many well-planned days for those covered under the CMS and the federal contractor mandate. Not to mention the concerns for companies who want to continue to enforce a vaccine mandate, which could run afoul of state law. Moreover, the CMS vaccination and testing requirements conflict with Arkansas state law.
Technically speaking, the CMS mandate would preempt the state’s law. But from my experience, trying to choose between conflicting federal and state laws can be like trying to figure out if you would rather run naked through poison oak or poison ivy; either way you go, you are sure to expose yourself to an irritating situation. This is an excellent place to seek legal counsel.
Even though OSHA’s ETS is no longer in play, there are still many legal and regulatory issues facing HR professionals. For example, OSHA will continue to use the General Duty Clause and CDC guidelines as enforcement tools to ensure workplaces are safe during the pandemic.
Several NOARK members will be directly impacted by the CMS Mandate, as will their vendors. There are sure to be preemption battles with the CMS and Arkansas state laws, as well as legal issues between businesses that have or want to have a vaccine mandate and state laws. And where there are mandates there are sure to be request for accommodations.
The good news is for our February members’ meeting, we have invited Greg Northen, Amber Bagley, and Missy McJunkins Duke, Attorneys at Cross, Gunter, Witherspoon & Galchus to discuss some of these ongoing legal challenges and many others that businesses face at this time in a presentation titled, “Hit Me with Your Best Shot”. Some of the learning objectives for this panel discussion are understanding the current status of federal vaccine requirements, understanding Arkansas law regarding vaccines and testing, and how to better analyze and consider the accommodation request. We hope to have some time at the end of the presentation for some questions.
I’m looking forward to seeing everyone at the February members meeting.
Russell Holt
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Footnotes
1. https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/guidance-interim-final-rule-medicare-and-medicaid-programs-omnibus-covid-19-health-care-staff-0
2. https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-prot