COVID-19 vaccine mandates have become the legal issue of the day, on both the federal and state stages. These requirements are already impacting millions of Americans. Here is a summary of some of the forthcoming mandates –
On the federal side, President Biden recently signed two executive orders as follows:
The first order, Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, requires federal agencies to implement a program to require COVID-19 vaccinations for each agency’s employees. Federal employees need to be fully vaccinated by November 22, 2021. The Safer Federal Workforce Task Force was tasked to issue guidance regarding this mandate and some information has already been released/updated, with more details forthcoming as noted at the following site: What's New? | Safer Federal Workforce
The second order, Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, is intended to ensure that parties contracting with the federal government provide COVID-19 safeguards to their workers. The Order directs the Federal Acquisition Regulatory Council to create a contract clause that will become part of federal contracts that will require contractors and subcontractors to comply with guidance from the Safer Federal Workforce Task Force. The guidance is forthcoming regarding this Order and is expected to require that employees of contractors and subcontractors be vaccinated against COVID-19 (unless an exemption applies).
In addition to the above Executive Orders, President Biden also has directed the Occupational Safety and Health Administration (“OSHA”) to develop a standard requiring all employers with 100 or more employees to ensure that their workforces are fully vaccinated or requiring weekly testing for any unvaccinated workers. This new Emergency Temporary Standard will be issued in the next few weeks.
Also, President Biden’s Administration recently announced that it will require COVID-19 vaccinations for staff within all Medicare and Medicaid-certified facilities. The Centers for Medicare & Medicaid Services (“CMS”) and the Centers for Disease Control (“CDC”) will be working on emergency regulations requiring staff vaccinations for skilled nursing facilities, hospitals, ambulatory surgical settings (such as Federally Qualified Health Centers), home health agencies, durable medical equipment suppliers, hospice providers, clinical laboratories, ambulances, and other providers. CMS is in the process of developing an Interim Final Rule with Comment Period, which is anticipated to be released this October, 2021.
Furthermore, on September 14, 2021, the U.S. Citizenship and Immigration Services announced that applicants subject to the immigration medical examination (which is required for permanent residency) must be fully vaccinated against COVID-19 before the civil surgeon can complete an immigration medical examination and sign the necessary immigration form. More information on this mandate can be found at the following site: COVID-19 Vaccination Required for Immigration Medical Examinations | USCIS
In addition to these federal mandates, the New York State Department of Health (“DOH”) recently issued emergency regulations requiring that many types of healthcare facilities mandate personnel to be fully vaccinated against COVID-19. At least the first dose of the vaccine must be obtained by staff at hospitals and skilled nursing facilities by September 27, 2021, and by staff at other covered entities (such as assisted living providers, hospice providers, diagnostic and treatment centers, and certain home health agencies) by October 7, 2021.
While the original proposed emergency regulations contained exemptions from this mandate for both medical and religious reasons, the final version of the emergency regulations eliminated the proposed religious exemption, prompting a swift legal response. Since the new regulations were announced in late August, 2021, multiple lawsuits have been filed to strike down the new mandate, with one lawsuit from the United States Federal District in the Northern District of New York in particular focusing on the elimination of the religious exemption – Dr. A v. Hochul. The Judge in this case on September 14, 2021 issued a temporary restraining order preventing DOH from enforcing this vaccine mandate in instances where an individual has a valid claim for a religious exemption. Most providers are now accepting applications for a religious exemption, while also cautioning employees that the law in this area is in transition. On September 20, 2021, the temporary restraining order was extended to October 12, 2021 and the Judge will issue a written decision on the request for a preliminary injunction on or before October 12, 2021.
These federal and state vaccine mandates have all raised an endless supply of legal and practical issues, including what an employer should do if an employee refuses the vaccine. For example, if the employee is terminated as a result of such a refusal, will he/she be entitled to unemployment benefits? Will he/she lose their vacation/PTO time? Also, how will employers deal with potential staffing shortages? These issues will be addressed more fully in the coming weeks and months.
Our Firm has extensive experience counseling employers and businesses on employment and labor law issues, as well as preparing and implementing applicable employee policies. If you have any questions related to this Legal Briefing, please contact any member of our Firm at 585-730-4773. Please note that any embedded links to other documents may expire in the future.
This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Law Offices of Pullano & Farrow PLLC
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