Yet Another Update on Vaccination Mandates

by Lana L. Rupprecht, Esq. - AVP Product Compliance

& Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,

November 18, 2021


Yes, we have yet another blog on the current status of the federal vaccination mandates.  Our previous blogs on this topic can be found here, here  and here.

Here are some key updates and links to important resources.

  • On Friday, November 12th, the 5th Circuit Court of Appeals, as we previously reported here, issued an order continuing the temporary stay of the OSHA Vaccination and Testing Emergency Temporary Standard (“ETS”) pending further judicial review.  The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order."
    • As a refresher, the OSHA ETS, published November 5th in the Federal Register, required private employers with 100 employees or more to implement employee vaccination or weekly testing requirements by January 4, 2022. The applicable ETS is here.
    • The 5th Circuit’s opinion continuing the temporary stay can be found here.
  • Then, OSHA announced that it is suspending “activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
    • OSHA’s statement can be found here.
  • On the afternoon of November 16th, the Judicial Panel of Multidistrict Litigation, based upon a random selection, announced that the 6th Circuit Court of Appeals (which typically presides over disputes arising in Ohio, Michigan, Tennessee and Kentucky) will decide, in one consolidated action, challenges to the OSHA ETS.
    • The November 16th consolidation order can be found here.

Now what?

  • The fate of the OSHA ETS is undetermined. Right now, and as we previously reported, the stay is temporary. But, OSHA is standing down on enforcing the ETS until the courts resolve. If you are an employer subject to the OSHA ETS, you should consult with your attorney on next steps.
  • Regardless of the outcome of the OSHA ETS, nothing prevents employers from voluntarily implementing a mandatory vaccination and/or testing policy.
  • The OSHA ETS stay has no impact on employers subject to the Interim Final Rule (“IFR”) issued by the Centers for Medicare and Medicaid Services (“CMS”) applicable to Medicare- and Medicaid-certified providers and suppliers which we discussed here.
  • The OSHA ETS stay has no impact on federal contractors or subcontractors subject to Executive Order (“EO”) 14042 which we previously discussed here.
  • Therefore, employers subject to the IFR and EO 14042 must move forward with their mandatory vaccination requirements.
    • The deadline for federal contractors to get vaccinated is pushed back to January 18, 2022, per an updated Guidance from the Safer Federal Workforce Task Force which can be found here.

Don’t worry, we know this is changing quickly. We are monitoring and will continue to keep you posted!

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at [email protected].