February 03, 2022

As the Federal Vaccine Mandates Fall One by One, Employers Are Left to Navigate a Maze of Uncertainty Amid State and Local Laws

7 min

In September 2021, President Biden announced a series of emergency worker protection regulations to combat surging positive test rates caused by the COVID-19 Delta variant. On September 9, 2021, the White House issued Executive Orders 14042 and 14043, mandating vaccination for federal employees while also mandating vaccination for all federal contractors, subcontractors, and their employees. Shortly thereafter, the Occupational Safety and Health Administration (OSHA) announced an Emergency Temporary Standard (ETS) requiring vaccination or testing for private businesses. The Centers for Medicare & Medicaid Services (CMS) at the Department of Health and Human Services followed suit, issuing an interim final rule requiring healthcare workers at facilities participating in Medicare and Medicaid to be fully vaccinated.

In the intervening months, these mandates faced a flurry of legal challenges. While the CMS mandate is the only federal regulation still standing at the moment, the dust has not completely settled, leaving employers in legal limbo. The following is a brief examination of each of these regulations and where each stands moving forward.


The first of these emergency measures to fall was OSHA's ETS, which required all employers with 100 or more employees to mandate vaccination for their employees or to require unvaccinated employees to undergo weekly testing.

The ETS mandate was stayed by the Court of Appeals for the Fifth Circuit as challenges by states, businesses, and nonprofit organizations – among others – were brought before district courts across the country. The numerous challenges were consolidated and brought before the Court of Appeals for the Sixth Circuit, which ultimately ruled that the stay was unwarranted and reinstated the ETS. Emergency motions were immediately filed with the Supreme Court as Nat'l Fed'n of Indep. Bus. v. Dep't of Labor, Occupational Safety and Health Admin.1, which ruled on the matter on January 13, 2022. In a 6-3 opinion, the Court found that OSHA is empowered to "set workplace safety standards, not broad public health measures," and that "permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA's regulatory authority without clear congressional authorization."2

The Court did not rule on the constitutionality of the ETS but agreed that the stay of its enforcement was warranted until the merits could be argued in the Sixth Circuit. Before the merits could be reached, however, on January 26, 2022, OSHA formally withdrew the ETS as a temporary standard. In its statement on the status of the ETS, OSHA emphasized that it was only withdrawing the ETS as a temporary standard, but keeping it in place as a proposed rule, with the agency "prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard."

According to the agency's standards, a final ruling on a proposed rule is usually made within six months of the proposal, signaling that there may be a final determination on OSHA's proposed vaccine mandate by May or June 2022.

CMS Healthcare Worker Mandate

The CMS interim final rule requires healthcare workers at facilities participating in Medicare and Medicaid to be fully vaccinated, barring exemption under the Americans with Disabilities Act (ADA) or Title VII of the Civil Rights Act of 1964 (Title VII).

Unlike the ETS, the Supreme Court, in the matter of Biden v. Missouri,3 upheld the CMS mandate for healthcare workers. In a 5-4 opinion, the Court held that "a vaccination requirement under these circumstances is a straightforward and predictable example of the 'health and safety' regulations that Congress has authorized the Secretary to impose"4 and that the mandate "fits neatly"  within the statutory authority of the CMS.5

Having been upheld, the rule is being implemented in two distinct phases:

Phase 1 requires employees at all healthcare facilities covered by the regulation to receive, at minimum, the first dose of a multi-dose vaccine series (such as that offered by Pfizer or Moderna) or a single-dose vaccine (such as that offered by Johnson & Johnson). Phase 1 also requires all covered facilities to implement policies and procedures that ensure employees comply with the mandate.

Phase 2 requires that all employees be fully vaccinated.

Covered employers in 25 states6 were required to have been compliant with phase 1 by January 27, 2022 and have until February 28, 2022 to complete phase 2. Covered employers in the remaining states have until February 13, 2022 to complete phase 1, except for Texas, which has until February 19, 2022. Penalties for non-compliance could include civil monetary penalties, denial of funding, or termination of Medicare and Medicaid provider agreements.

Federal Employee and Contractor Mandates

In September 2021, the White House issued two executive orders. The first, Executive Order 14042, mandated vaccination for all federal contractors, subcontractors, and their respective employees. The second, Executive Order 14043, mandated vaccination for all federal employees.

On December 7, 2021, the District Court for the Southern District of Georgia issued a nationwide stay of enforcement and implementation of the vaccine mandate for federal contractors and subcontractors established by Executive Order 14042. Separate injunctions have also been issued in Kentucky, Louisiana, Missouri, and Florida, staying enforcement of the mandate on a local scale, with Florida also explicitly prohibiting enforcement of the masking and physical distancing requirements. Appeals are pending for each of these injunctions, but with requests for expedited review denied across the board, the mandate will remain unenforceable for at least several more months.

On January 21, 2022, a judge in the Southern District of Texas issued a nationwide injunction on enforcement of Executive Order 14043, calling the Order "a bridge too far"7 and citing to the Supreme Court's opinion in NFIB v. OSHA. While the administration immediately filed a motion to appeal with the Fifth Circuit Court of Appeals, the forthcoming legal debate may end up having little practical effect, as the White House has indicated that roughly 98% of federal employees have already complied with the mandate.

Employer Implications

Barring these federal mandates, employers are back to the familiar position of having to wade through a morass of state and local laws. For large employers operating in multiple jurisdictions, this means navigating a "patchwork" of laws that are often vague, in flux, and in direct contradiction with one another. For example, New York State does not currently require private employers to mandate the COVID-19 vaccine, but employers subject to the HERO Act remain obligated to adopt health and safety plans designed to protect their employees from infectious airborne diseases, including mask mandates for all in-person private employees. New York City, on the other hand, follows a distinct set of regulations which mandate that all on-site employees be fully vaccinated subject to applicable ADA and Title VII exemptions. Similarly, the Commonwealth of Massachusetts mandates vaccination only for certain healthcare workers and state employees, while the city of Boston has mandated vaccination for all patrons and on-site employees of indoor dining, fitness, and entertainment venues. On the other side of the spectrum, numerous states have either passed legislation that bans outright an employer's ability to require vaccination or vaccination passports or enacted regulations that prohibit employer vaccination mandates absent exemption requirements. These exemptions can be incredibly broad, such as Utah's "personal belief" exemption, which allows employees to opt out of vaccination if it conflicts with a "sincerely held personal belief."

No two sets of regulations are exactly alike, so it is imperative that all employers familiarize themselves with and understand the current laws of not only the state in which they operate, but also in many cases the cities in which they operate. Employers are going to have to be readily adaptable and anticipate that many of these regulations are being actively passed and challenged and may change at a moment's notice. Staying abreast of these changes may mean the difference between staying compliant or facing penalties. Employers are encouraged to contact the authors of this article or any member of Venable's Labor and Employment Practice Group with any questions regarding COVID-19 mandates.

* The authors of this article thank Alexander Clementi, law clerk, for his assistance with its completion.

[1] Nat'l Fed'n of Indep. Bus. v. Dep't of Labor, Occupational Safety and Health Admin., 595 U.S. Nos. 21A244 and 21A247, slip op. (Jan. 13, 2022).

[2] Id. at 2.

[3] Biden v. Missouri, 595 U.S. Nos. 21A240 and 21A241, slip op. (Jan. 13, 2022).

[4] Id. at 7-8.

[5] Id. at 5.

[6] These states did not join the legal challenges to the CMS mandate. They are: CA, CO, CN, DE, DC, FL, HI, IL, ME, MD, MA, MI, MN, NV, NJ, NM, NY, NC, OR, PA, RI, TN, VT, VA, WA, WI.

[7] Feds for Medical Freedom v. Biden, No. 3:21-cv-356 (S.D. Tex. Jan. 21, 2022).

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