Yesterday, in the latest blow to Biden’s vaccine mandate for businesses, the United States Senate passed a bill that would overturn President Joe Biden’s COVID-19 vaccine mandate for private businesses. The legislation will now go to the House of Representatives, where it potentially faces strong opposition. If it passes in the House, Biden has threatened to veto it. While this is significant in terms of the ongoing battle to prove the legality of the mandate itself, it doesn’t change much for employers. So what does it all mean and what happens next?

Quick Catch Up:

  • All three orders of the vaccine mandate, (employers with over 100 employees, federal contractors and subcontractors, and health care workers), have been temporarily blocked from being enforced via separate court rulings. These rulings have effectively barred any implementation nationwide.

  • For now, there are no deadlines related to the original ETS or Executive Orders that employers are required to meet regarding COVID-19 vaccination policies or enforcement of vaccination or testing amongst employees. 

The Vaccine Mandate Timeline: 

  • 9/9/21: Biden Administration announces new COVID-19 Action plan, the first portion of which involved:
    • The signing of two new Executive Orders that would require vaccinations for all federal workers and contractors.
    • Instructed the Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) to develop a rule requiring employers with 100 or more employees to ensure their workforce is fully vaccinated to require unvaccinated workers to produce weekly negative test results leveraging the use of an emergency temporary standard (ETS).
    • Instructed the Centers for Medicare and Medicaid Services (CMS) to develop a rule requiring workers in health care settings that receive Medicare and Medicaid reimbursements to implement vaccination and testing protocols.
  • 11/4/21: The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) requiring large employers (100+ employees) to develop, implement and enforce a COVID-19 vaccination policy or institute a policy to allow employees to choose between vaccination and weekly testing.
    • 11/5/21: ETS took effect on 11/5/21.
    • 12/5/21: Employers were to have vaccination policies in place.
    • 1/4/22: Deadline for employers to be in compliance; employees to be fully vaccinated or begin regular testing.
  • 11/5/21: The 5th U.S. Circuit Court of Appeals issued a stay on the ETS, citing challenges the plaintiffs brought against the ETS “show a great likelihood of success on the merits.”
  • 11/12/21: The 5th Circuit Court of Appeals extended the original order made on 11/5/21.
  • 11/16/21: The 6th U.S. Circuit Court of Appeals was selected in a lottery held by the Judicial Panel on Multidistrict Litigation to hear 34 consolidated challenges to the ETS.
    • The date for this hearing has not yet been scheduled. It has been noted that the court is not expected to rule on the stay until December 10th at the earliest.
  • 11/30/21: U.S. District Court issued a nationwide preliminary injunction to halt the start of President Biden’s national vaccine mandate for health care workers.
  • 12/2/21: Centers for Medicare and Medicaid Services (CMS) issued a memo announcing it was suspending enforcement of the mandate due to U.S. District Court ruling while it appeals the court decisions.
  • 12/7/21: U.S. District Court issued a nationwide stay barring the enforcement of Executive Order 14042 for federal government contractors and subcontractors until further notice.

What’s Next?

Keep an eye out for updates, particularly from the 6th Circuit Court of Appeals which is the next decision expected before we wrap 2021. However, no matter the outcome at the 6th Circuit Court, this is very likely to eventually make its way to the Supreme Court. Stay tuned and stay well!