The last four to six weeks have been a whirlwind for private employers across the country. Federal vaccine mandates and regulations have been enacted, and then enjoined, and additional states have limited the ability of private employers to mandate vaccination, or even to verify an employee’s vaccination status. With court challenges continuing, new legislative sessions beginning in the new year, and the latest COVID-19 variant sweeping across the United States, we currently face one of the most uncertain legal periods of the pandemic for private employers.

Federal OSHA Vaccine or Test Lawsuit Update

As previously reported, on November 12 the U.S. Court of Appeals for the Fifth Circuit issued a nationwide injunction ordering the federal Occupational Safety and Health Administration (OSHA) to stop all efforts to implement or enforce the so-called vaccine or test emergency temporary standard (ETS). Pursuant to applicable regulations, on November 16 the Judicial Panel of Multidistrict Litigation consolidated all petitions challenging the ETS in the U.S. Court of Appeals for the Sixth Circuit, via a lottery.

Since that time, OSHA and the petitioners have engaged in procedural and legal wrangling over scheduling, but no substantive activity has occurred. On November 23 the Sixth Circuit issued a schedule for the parties to respond to OSHA’s emergency motion to dissolve the Fifth Circuit’s stay. OSHA filed a motion to expedite that schedule, which the Sixth Circuit denied on December 3. OSHA also sought to transfer the consolidated proceeding to the U.S. Court of Appeals for the D.C. Circuit, a request that was also denied. Currently, parties have until December 10 to file briefs on OSHA’s motion to lift the stay.

Separately, several petitioners have filed motions for review of the consolidated challenges to the ETS by the entire Sixth Circuit, rather than a three-judge panel. OSHA opposes these motions. The court has not yet issued a ruling.

CMS Vaccine Mandate Lawsuit Update

Previously discussed here, on November 29 and 30, the U.S. District Courts for the Western District of Louisiana and the Eastern District of Missouri issued injunctions that, together, result in a nationwide injunction barring the Centers for Medicaid & Medicare Services (CMS) from enforcing their vaccine mandate for certain healthcare entities.

Separately, on December 6, the U.S. Court of Appeals for the Eleventh Circuit issued a 94-page opinion denying Florida’s lawsuit seeking to enjoin the CMS mandate. In that decision, the Eleventh Circuit questioned the Western District of Louisiana’s nationwide injunction of the CMS mandate. However, the Eleventh Circuit noted that it is the job of the Fifth Circuit to review the Louisiana injunction. For now, the nationwide stay of the CMS mandate remains in place.

Federal Contractor Vaccine Mandate Lawsuit Update

As discussed here, on December 7, the U.S. District Court for the Southern District of Georgia issued a nationwide injunction of President Biden’s federal contractor vaccine mandate. This follows an earlier, more limited injunction that applied to Kentucky, Ohio, and Tennessee. We expect that the government will appeal these injunction orders, but how the relevant circuit courts will rule is unclear.

Despite these injunctions, many government contractor employers are being directed by their contracting agencies or prime contractors to ensure that all or portions of their workforce are vaccinated against the virus. In many cases, the agencies or prime contractors are not relying on the now-enjoined executive order, but rather on the agencies’ own directives and contracting provisions.

Additional State and Local Activity

Kansas Legislation: On November 23, 2021, Kansas Governor Laura Kelly signed into law House Bill 2001. The law allows employees to avoid vaccination against COVID-19 if they submit a written statement: 1) from a healthcare provider that receiving the vaccine would “endanger the life or health of the employee”; or 2) from the employee stating that receiving the vaccine would violate their sincerely held religious beliefs. The law prohibits employers from making any inquiry into the sincerity of religious requests. It also expands what constitutes a “religious belief” to include “theistic and non-theistic moral and ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious beliefs.” The law further provides a mechanism for employees to file complaints of violations of the law with the state secretary of labor, who is directed to investigate and reach findings within 60 days. The state can fine employers with fewer than 100 employees up to $10,000 per violation, and those with 100 or more employees up to $50,000 per violation. The law became effective upon the governor’s signature.

New York City Order: New York City announced a vaccine mandate for all private-sector employers, effective December 27. Employees of private employers in New York City will be required to have at least one dose of a COVID-19 vaccine by that date. More information will be available when guidance is released on December 15. It is not yet known, but likely, that other orders like this will proliferate in localities around the country.

Tennessee Legislation: As previously reported, on November 2 the Tennessee Legislature passed House Bill 9077/Senate Bill 9014, which effectively bans vaccine mandates for employees by governments and private businesses, and on November 12 Governor Lee signed the bill into law. The Tennessee law provides a mechanism for businesses that would experience a “loss of federal funding” if they complied with the law (for example, by failing to comply with the federal contractor vaccine mandate) to request an exemption from the Tennessee comptroller. However, following issuance of the injunction by the Eastern District of Kentucky against the federal contractor vaccine mandate in Kentucky, Ohio, and Tennessee, the Tennessee comptroller announced suspension of  reviews of all requests for exemption.

Texas Order: Texas Governor Abbott issued Executive Order GA-40 in October 2021, allowing employees subject to a vaccine mandate by their employer to obtain an exemption for medical or religious reasons, as well as for reasons of “personal conscience.” The meaning of “personal conscience” in this context remains uncertain. On December 8, the Texas Workforce Commission issued a letter to Texas employers reminding them of the order. The Commission also encouraged any employees who are denied exemptions requested under the order to notify the Commission. The Commission stated it will investigate all tips. Verified tips “will be referred to the appropriate authorities for prosecution.” Finally, the letter included a sample exemption form that the Commission encouraged employers to use to “ensure compliance.”

West Virginia Legislation: On October 22, West Virginia Governor Jim Justice signed Senate Bill 335. This West Virginia law will not become effective until January 20, 2022. Once effective, employers will be required to provide exemptions from vaccination to employees and prospective employees who submit a certification from a healthcare provider that the “physical condition of the current or prospective employee is such that COVID-19 immunization is contraindicated, there exists a specific precaution to the mandated vaccine, or the current or prospective employee has developed COVID-19 antibodies from being exposed to the COVID-19 virus or suffered from and has recovered from the COVID-19 virus.” The law also allows employees or prospective employees to submit a notarized certification that they have a religious belief that prevents them from taking the COVID-19 vaccine. The law provides employees with the ability to seek injunctive relief.

As these developments proliferate, employers face a convoluted legal landscape that becomes more complex by the day. Businesses with employees in states with mandatory vaccination policies in effect or under consideration should carefully evaluate the effect of these laws and consult with legal counsel to ensure compliance. Businesses with employees in other states should monitor legislative activity there as well. Littler will continue to monitor these legislative, judicial, and regulatory actions and will provide periodic updates on these constantly changing standards.