Federal vaccine mandates enjoined nationwide: Should employers pause mandatory vaccination efforts?

The legal status of the federal vaccination mandates for private employers has changed almost daily. As of this writing, nationwide preliminary injunctions are in effect for all three federal vaccination mandates applicable to private employers:

• Executive Order 14042 (EO 14042), which requires covered employees of covered federal contractors and subcontractors to be fully vaccinated for COVID-19 by January 18, 2022, subject to limited exceptions for medical and religious reasons (see our previous posts on EO 14042 here);
• The Occupational Health and Safety Administration (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which requires employers with 100 or more employees, by January 4, 2022, to require their workers either to be fully vaccinated (or at least have received a final dose of a primary vaccine series) or to test weekly for COVID-19 (we discuss the ETS here); and
• A Centers for Medicare & Medicaid Services (CMS) interim final rule that requires staff (including non-employees) in most health care settings to be fully vaccinated for COVID-19, with limited exceptions; all such staff must either receive their first dose of a vaccine or submit an exemption request by December 6, 2021, and must either receive their final dose of a primary vaccine series or have an approved exemption by January 4, 2022.

The relevant court orders prohibit the federal government from taking enforcement action against employers for noncompliance with these mandates while the court-ordered injunctions are in place. It is also possible other courts will issue preliminary injunctions that apply either regionally or nationwide.

That said, the federal government is challenging the injunctions. As a result, one or more of the injunctions could soon be lifted by one of the courts of appeals or the Supreme Court, at which time the underlying mandate(s) could take effect again. If that happens, it is unclear whether the government would adjust the mandate deadlines, in light of the continuing uncertainty, to allow employers more time to come into compliance.    

Employers that are covered by these now-stayed mandates face the practical problem of how to respond to the injunctions. The answer will depend on the employer’s specific circumstances, including which mandates apply to their workforces; whether the employer has employees in multiple jurisdictions; whether it operates in a state that has adopted legislation prohibiting or restricting employer vaccination mandates; and workforce sentiment. Specifically:

• Employers should closely monitor legal developments. Even if some federal mandates remain enjoined, if one mandate applicable to your workplace goes back into effect, you will have compliance obligations.
• While the injunctions remain in place, some employers may decide to proceed with mandatory vaccination policies, for example, in order to maximize safety for workers, customers, and others, and/or because there is strong sentiment among leadership and/or the workforce in favor of vaccination. Maintaining existing mandatory policies will also obviate the need to scramble to meet the federal mandate deadlines if the mandates are reinstated.
• Other employers may decide to pause compliance efforts while the federal mandates are enjoined. This “wait-and-see” approach may make sense for workplaces with strong “anti-vaccine” sentiment, where employers are concerned about employee attrition as a result of mandatory vaccination (or testing) policies, and for unionized employers who may have a duty to bargain over vaccination requirements under collective bargaining agreements.
• Employers taking the “wait-and-see” approach may want to consider continuing certain compliance efforts in order to be able to ramp up quickly if an applicable federal mandate again becomes effective. This could include collecting employee vaccination status information, or creating a draft policy that could be implemented in short order upon reinstatement of a mandate.
• Employers operating in states that prohibit or limit employer vaccination requirements should consider pausing or adjusting mandatory vaccination policies adopted to comply with the federal mandates in order to avoid running afoul of state laws while the federal mandates are enjoined.
• Employers that operate in multiple jurisdictions will need to consider whether it is possible to maintain a uniform vaccination policy for all personnel in the absence of an effective federal mandate, or whether to adopt different approaches in each state based on applicable state laws.
• Whatever approach you take, clear communication with employees is key. Like employers, many employees are confused by news reports about the federal mandates and the legal challenges to them. Employees want to know that you are aware of these developments, how you are responding to them, and the rationales for any policy changes you make.    

These are difficult questions, and there is no one-size-fits-all approach. For help determining the approach best-suited to your organization, please contact an author of this post or the Hogan Lovells lawyer with whom you regularly work.

Authored by William Ferreira, George Ingham, Mike Mason, Allison Pugsley, Joy Sturm, and Amy Folsom Kett.