On May 1, 2023, President Biden issued a statement announcing the end of the federal COVID-19 vaccine mandates, including those impacting federal contractors and CMS-covered healthcare employers, among others. But what impact does this have on employer vaccine mandates?
As you may recall, the Biden Administration strongly supported vaccination as a primary means of combating the COVID-19 pandemic. To the extent that it (thought it) could, the Administration imposed – or attempted to impose – vaccine mandates that impacted certain private employers.
One unsuccessful attempt was a November 5, 2021 Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) that imposed a vaccination mandate on all private employers with 100+ employees through. That mandate was, however, immediately stayed by a federal appellate court, and the stay was ultimately upheld by the Supreme Court, as discussed in our January 13, 2022 E-lert.
As for federal contractors, President Biden issued an Executive Order on September 9, 2021, requiring the insertion of a clause into certain new, renewed and extended contracts mandating compliance with Guidance issued by Safer Federal Workforce Task Force. The Guidance, which was issued on September 24, 2021, required the vaccination of most of a contractor’s employees, as we discussed in detail in our September 2021 E-Update. This requirement was immediately subject to legal challenge and blocked by several U.S. Courts of Appeals. The Task Force subsequently announced that the vaccination mandate would not be enforced, but it had not been formally withdrawn.
The Biden Administration was more successful with regard to the mandate for certain healthcare employers. On November 5, 2021, the Centers for Medicare and Medicaid Services (“CMS”) released its Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule (the “CMS Vaccination Rule” or the “Rule”), as discussed in our November 8, 2021 E-lert. The CMS Vaccination Rule requires Medicaid and Medicare-certified healthcare providers to mandate vaccination against COVID-19 for all applicable staff, subject to medical and religious exemptions required by law. This, too, was subject to legal challenge, but ultimately was upheld by the Supreme Court on the same day that it rejected the private employer mandate discussed above.
Now, the Biden Administration has announced that it is ending its various vaccine mandates. The never-enforced contractor mandate will end as of May 11, 2023 – the formal end of the COVID-19 public health emergency. The CMS mandate will require a more formal process to end it since it was issued as a Final Rule, and the Biden Administration has stated that more information about this process will be forthcoming soon.
For those impacted employers, this announcement means that they will no longer be required to mandate vaccinations for their employees. However, as we recently discussed in our April 2023 E-Update, employers may always choose to do more than the government requires with regard to safety and health. Thus, they may opt to continue requiring COVID-19 (or other) vaccination as a condition of employment as long as there are no applicable state law bans on workplace vaccine requirements and as long as they provide any legally required medical or religious exemptions .