The Biden Administration proposed three (3) vaccine mandates in 2021. The first mandate pertained to medical facilities which receive Medicare or Medicaid payments (hospitals, nursing homes, etc.). The second mandate pertained to companies which accept federal contracts (and the company’s subcontractors who may work on the project). The third mandate – which was the most widely discussed in the media – pertained to employers with 100 or more employees.
Broadly speaking, the mandates required employees to be vaccinated against COVID-19 or face ramifications. The mandates did provide for religious exemptions. The mandate for 100+ employees contained an additional carve-out for employees who refused to be vaccinated. Such employees would alternatively be required to submit to weekly testing and wear facemasks while at work in lieu of termination.
In January 2022, the United States Supreme Court ruled on two of those vaccine mandates. The Court upheld the vaccine mandate for healthcare workers in a 5-4 split. The Court noted that Congress has given the Department of Health and Human Services authority to require health care facilities accepting Medicaid and Medicare to implement such a mandate. Employees at these facilities who do not become vaccinated will face suspension, and potentially, termination of their employment.
Contrarily, the Supreme Court struck down the vaccine mandate for companies with 100+ employees. The Occupational Safety and Health Administration (OSHA) is tasked with regulating workplace dangers amongst other duties. The Supreme Court noted, however, that “[a]lthough Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.” The Court was split 6-3.
Meanwhile, the remaining vaccine mandate for federal contractors and their subcontractors has not yet made its way to the Supreme Court. A federal court of appeals granted a preliminary injunction in December against the federal contractor mandate. As such, it cannot be enforced at this time. The Government gave notice on January 12, 2022, that it intends to appeal the appellate court’s decision. If this mandate is upheld, all employers who receive federal contracts must require their employees be vaccinated and any individual subcontractor(s) working on the project must also be vaccinated. Individual employees at such companies who fail to become vaccinated risk termination of their employment. Unlike the 100+ employee mandate, the federal contractor mandate does not include a weekly testing/mask wearing carve out for employees who refuse to become vaccinated.
This article is for information purposes only and is not intended to constitute legal advice.