As 2021 draws to a close and the omicron variant of the COVID-19 virus takes hold, some employers are in limbo, waiting for the courts to decide whether the Biden administration’s vaccine mandates will go forward.
The Occupational Safety and Health Administration has proposed a rule requiring businesses employing 100 or more workers either to ensure workers are vaccinated against COVID-19 or that they wear masks and undergo weekly coronavirus testing.
Also on the table is a measure by the Centers for Medicare & Medicaid Services that would require vaccines for workers in health care organizations that accept Medicare and Medicaid.
Finally, the administration has proposed a vaccine mandate for federal contractors, as advised by the Safer Federal Workforce Task Force. This measure is on hold, following a temporary injunction against the mandate issued last week by a federal court in Florida.
On Dec. 22, the U.S. Supreme Court agreed to hear oral arguments in January on the mandates for large businesses and health care organizations. Arguments are set for Jan. 7, with rulings expected soon after.
The large workplace mandate is slated to begin throughout the nation in January, while the health care requirement is blocked in several states, including Missouri, which led a 10-state lawsuit to halt the requirement.
Employment law specialist Raymond Lampert of Lampert Law Office LLC said that of the two mandates the high court will consider, the OSHA requirement has a better chance of passing judicial review because of its specificity. The CMS rule, on the other hand, has some deficiencies.
In his ruling on the Missouri-led case objecting to the CMS lawsuit, U.S. District Judge Matthew T. Schlep wrote, “CMS seeks to overtake an area of traditional state authority by imposing an unprecedented demand to federally dictate the private medical decisions of millions of Americans. Such action challenges traditional notions of federalism.”
The judge also found CMS improperly bypassed notice and comment requirements.
“Even if CMS has the authority to implement the vaccine mandate … the mandate is likely an unlawful promulgation of regulations,” the court order states, noting the agency’s failure to allow notice and comment is grounds for invalidating the rule.
The order called the vaccine mandate “arbitrary and capricious,” in part because of its broad scope and the suddenness of the action.
“One of the judge’s reasonings on that is that the pandemic has been going on for a year and a half, and the CMS seems to have taken a long time to implement the rule,” Lampert said. “They could have proposed it a long time ago and had the proper time to hear comments and evidence on it. The court kind of blames them for their own delays.”
Lampert noted the OSHA rule does not have the same problems as the CMS attempt.
“The OSHA proposed rule does appear to close a lot of the problems that the court noted in the CMS decision,” Lampert said, noting OSHA took a measured approach that included a public comment period.
“There’s extensive discussion and reasoning as to pretty much every element of the proposed rule,” Lampert said. “It did explain in detail why it should apply to employers of at least 100 employees, and the substance of the rule itself is not a blanket vaccine mandate. It requires either a vaccine or regular testing and masking – it does give employers the option.”
Lampert said the CMS rule would have required the same policy at 15 different types of medical facilities, despite the fact that risk differs greatly from one to another.
Chris Huelat, director of home care agency Visiting Angels, said his agency is nonmedical and private-pay only, and therefore it is not party to the CMS ruling, though the OSHA rule may apply.
Huelat said Visiting Angels does not require vaccines of its employees.
“We encourage our employees to be vaccinated, but we don’t mandate it as a condition of employment,” he said.
Huelat said many clients request a caregiver who is vaccinated, and that request is honored if possible.
“We actually had a couple of clients require non-vaccinated caregivers, and we try to do that as well,” he said.
He noted a majority of his staff has chosen to be vaccinated, and most have received booster shots, too, at this point.
In light of court challenges, OSHA now states that it will not issue any citations for non-compliance with requirements before Jan. 10, and it will not issue citations before Feb. 9 for failure to enforce testing requirements, provided employers are using good-faith efforts to comply, according to reporting in the National Law Review.
Lampert said many were fearful the CMS rule would precipitate mass resignations of health care employees.
He notes the OSHA rule would allow employees to forego the vaccine if they have religious or health reasons for doing so. A sincerely held religious belief, under Title 7 of Missouri law, is not a high bar.
“Either you actually believe it or not,” he said. “Whether that was a belief that was adopted recently or with or without good reason is not something you can really go into. Mind reading isn’t something I know how to do myself. Most of the time we’re simply left to rely on what people say or what they do.”
He added that a religious or health exemption does not exempt employees from all rules.
“They still have to be able to do the job, but the employer should be flexible and make reasonable accommodations,” Lampert said. “You don’t get to say, ‘I have a religious exemption,’ and ignore rules every other employee has to follow.
“You have a right to your own belief, but you don’t have the right to endanger the health and safety of others.”
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