Update Regarding Mandatory COVID-19 Vaccination Policies
What You Need to Know to Require the Jab
October 14, 2021
As many employers develop and implement mandatory COVID-19 vaccine policies, the legal landscape for federal and private vaccine mandates continues to develop. Below are a few recent developments in this area for all employers to consider:
- Guidance for Federal Contractors – Pursuant to President Biden’s Sept. 9th Executive Order, new federal contracts entered into on or after November 14, 2021 and ongoing contracts extended on or after October 15, 2021 generally must include a clause that incorporates guidance from the Safer Federal Workforce Task Force regarding COVID-19 protocols (including vaccine requirements). Notably, new solicitations for federal contracts issued on or after October 15, 2021 must also include such a clause. On September 24, 2021, the Safer Federal Workforce Task Force published its first set of guidance regarding the Executive Order. Since publishing the Sept. 24th guidance, the Safer Federal Workforce Task Force has continued to publish additional resources for federal contractors, including a set of FAQs.
- OSHA Emergency Temporary Standard – Since President Biden announced on Sept. 9th that the Occupational Safety and Health Administration (“OSHA”) has been tasked with developing an emergency temporary standard for private employers with 100+ employees to mandate COVID-19 vaccination or testing for employees, there has been little activity for private employers. However, on October 13, 2021, reports came out that OSHA sent the proposed standard to the White House on October 12, 2021 for review. As such, it is anticipated that the emergency temporary standard will be published soon.
- Updated EEOC Guidance – For the last year and a half, the Equal Employment Opportunity Commission (“EEOC”) has published a variety of resources for employers to rely upon while operating during the pandemic. Beginning late last year, the agency updated the guidance to include information for employers developing mandatory or incentivized COVID-19 vaccine policies. On October 13, 2021, the EEOC updated this guidance to include additional information regarding such vaccine programs.
- Recent Court Rulings Against Employers’ Mandatory Vaccine Policies – Most of the litigation regarding employer vaccine mandates has come down in favor of employers so far. However, two recent Temporary Restraining Orders (“TRO”) have been entered in favor of employees challenging such mandates.
- Illinois State Law – Late last month, an Illinois state court entered a TRO against an employer’s mandatory vaccine policy based on Illinois’ Health Care Right of Conscience Act.
- Federal Law – On October 13, 2021, a federal judge in Texas entered a TRO against United Airlines’ efforts to place employees with religious and medical exemptions to its mandatory vaccine policy on unpaid leaves of absence. The TRO also prohibits United Airlines from denying requests for religious and medical exemptions.