December 07, 2021

Strike 3 for COVID Vax Mandate: Will it be 4?

On December 7th, a federal district judge temporarily blocked the Biden Administration “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.” The ruling applied to Executive Order (EO) 14042. The EO required covered contractors to require any of their employees working “on or in connection with” a covered contract to be vaccinated. Testing was not an option, except in limited circumstances as a reasonable accommodation for certain medical or religious reasons.

The Safer Federal Workforce Taskforce subsequently announced they will “take no action to enforce the clause implementing requirements of Executive Order 14042” until further notice from the courts or federal agencies. For now, covered federal contractors are temporarily relieved of their obligation to comply.

The same thing has already happened to the vaccine rules published by (1) OSHA that would have covered private (and certain state and local public) sector employers employing 100 or more employees; and (2) the Centers for Medicare and Medicaid Services (CMS) covering Medicare and Medicaid approved facilities. Both of those rules have also been enjoined nationwide.

That leaves just one rule still intact but facing legal challenges, the rule for federal employees.

So, in this schizophrenic mess, employers are awash with questions from their employees along with their own about how, if, and when they should or should not proceed. Should they go ahead and implement the policies and procedures they have prepared and already communicated to employees? It depends.

  1. Check with your company’s legal counsel.
  2. Consider any state or local jurisdiction¬†where you employ one or more employees. As of this writing, at least 11 have enacted a law or are considering legislation to restrict private sector employers’ ability to require COVID-19 vaccinations.
  3. Consider any collective bargaining agreements. On November 12, 2021, the National Labor Relations Board issued a memo indicating that any vaccine requirements imposed at the discretion of the employer may be mandatory subjects for bargaining.
  4. Be prepared. If you are going to require your employees to be vaccinated absent a federal, state, or local rule requiring them to do so, understand your goal and objective. Some of your employees will be asking why. You will want to be prepared with an answer that is well-reasoned, soundly based on your business practices, and avoids being perceived as judgmental, such as, “Because it’s the right thing to do.”