OSHA ETS Is Temporarily Stayed; State Legal Developments Merit Attention

The Fifth Circuit temporarily stayed the Occupational Health and Safety Administration’s Emergency Temporary Standard on COVID-19, placing it in legal limbo. In addition, state governments continue to take actions related to employer vaccine mandates that merit attention. In the past month, state legislatures in Alabama, Arkansas, Tennessee, West Virginia, and Iowa passed bills purporting to limit the ability of employers to mandate COVID-19 vaccination, and Florida will consider similar measures in a special session starting November 15. Illinois, in contrast, passed an amendment limiting the effect of a statute used by plaintiffs to challenge vaccine mandates.

Fifth Circuit Stays OSHA ETS

On November 6, the Fifth Circuit Court of Appeals granted an emergency motion to stay enforcement of the November 5, 2021 OSHA Emergency Temporary Standard (ETS) pending further action. The brief order noted that “the petitions give cause to believe there are grave statutory and constitutional issues with [the ETS].” Additional briefing will occur during the week ending November 13.

The order does not specify whether its stay extends beyond the Fifth Circuit, but it enjoins the federal government from taking any action to enforce the ETS while it is in effect. As such, the stay’s practical effect is a nationwide pause.

The Fifth Circuit’s order is a temporary measure, ostensibly to keep the status quo in place pending the conclusion of the appeal. The Circuit Court’s briefing schedule suggests it intends to issue a final ruling presumably within a week or two at most. It is also possible that there will be a consolidation proceeding between the Judicial Panel on Multidistrict Litigation next week, as multiple parties have filed challenges to the ETS in multiple circuits. As such, the case may end up being transferred out of the Fifth Circuit before the court has a chance to issue a final ruling. Further, the federal government has the option of asking the US Supreme Court to dissolve this temporary stay.

Implications for Employers

The ETS requirements, except for the mandatory testing of unvaccinated workers, are set to go into effect on December 6, 2021. It is unknown how long the Fifth Circuit’s stay will remain in place or whether the Fifth Circuit, or another federal court, will ultimately deem the ETS to be unlawful.

Many of the obligations imposed by the ETS require substantial administrative efforts from employers, such as determining and recording the vaccination status of workers and preparing a written vaccination policy. Even preparing now, it may be a challenge for certain organizations to meet the initial compliance deadlines. Therefore, many employers will continue to plan and take steps to ensure that they are able to comply with the published ETS deadlines while awaiting a final resolution of the litigation challenges.

State Law Developments

A number of state governments have considered legislation related to employer vaccine mandates during the pandemic. These efforts only increased after the Biden-Harris administration announced its plans to mandate vaccines for federal contractors and employees working for employers with 100 or more workers.

In the past month, state legislatures in Alabama, Arkansas, Iowa, West Virginia, and Tennessee enacted laws on this issue. These actions follow Montana’s passage of a COVID-19 vaccine discrimination law in May and the Texas governor’s issuance of an executive order in early October purporting to expand exemptions to vaccine mandates under state law. OSHA maintains that its ETS preempts these laws, and the federal government argues that federal contractors are not bound by them. However, this trend is not likely to abate. For instance, Florida plans to hold a special legislative session on COVID-19 vaccine mandates starting on November 15. Other states will likely consider similar legislation when their legislatures reconvene in the new year.

At a high level, these recently enacted statutes provide the following:

• Alabama: The bill calls for employers with vaccine mandates to exempt employees who submit a form stating that receiving the vaccine (1) violates their sincerely held religious belief, or (2) is medically inadvisable due to a current condition or medication, severe allergic reaction to past vaccines or specific components of the vaccine, treatment with COVID-19 monoclonal antibodies or convalescent plasma in the past 90 days, past diagnosis with COVID-19, bleeding disorder, or immunocompromised status. Employees claiming medical exemption need to have the form signed by a health care professional. The law does not create a private right of action. Instead, it requires the Alabama Department of Labor to create an administrative process allowing employees whose requests are denied by employers to appeal decisions to a state administrative judge. The statute purports to forbid Employers from terminating employees while a request is under appeal. The law went into effect on November 5 and will expire on May 1, 2023.

• Arkansas: Employers that require or are mandated to require vaccination or immunization for COVID-19 are directed to exempt employees from vaccination if the employee (1) agrees to produce a weekly negative antigen detection test result or molecular diagnostic test result, or (2) provides proof of immunity to COVID-19 via the presence of antibodies, T Cell response, or evidence of a positive test for COVID-19 or its variants. If an employee is terminated due to an employer’s violation of the law, such as a termination of an employee who is not vaccinated and was not offered a testing option (including antibody testing), the statute provides that the employee may be eligible for unemployment benefits in addition to other remedies. The law goes into effect on January 13, 2022 and is scheduled to expire on July 21, 2023.
• Iowa: The bill directs employers to waive a vaccine requirement if an employee submits a statement saying receipt of the vaccine would be “injurious to the health and well-being of the employee or an individual residing with the employee” or “receiving the vaccine would conflict with the tenets and practices of a religion of which the employee is an adherent or member.” However, the law imposes no penalty or remedy and does not define what would constitute an acceptable statement (e.g., a sworn declaration or something else) from an employee seeking an exemption. The intent appears to be to create a category of exemptions that is broader and requires less proof than the reasonable accommodation requirements imposed by other statutes. The statute took effect on October 29.
• Tennessee: The bill purports to prohibit covered private businesses from compelling or otherwise taking adverse action to compel a person to provide proof of COVID-19 vaccination if the person objects to receiving a COVID-19 vaccine for any reason. The statute defines “adverse action” as discriminating against a person by denying employment, employment privileges, credit, insurance, access, products, services, or other benefits. The statute further notes that discharging, “threatening,” or otherwise discriminating against an employee in any manner that affects the employee’s employment, including compensation, terms, conditions, locations, rights, immunities, promotions, or privileges, constitutes an adverse action. Federal contractors can request an exemption from the law from the Comptroller of the Treasury. The bill directs the Comptroller to grant exemptions if it finds that compliance with the bill would result in the contractor losing its federal funding. The bill also exempts medical providers participating in the Medicare and Medicaid systems that would be subject to fines for complying with its provisions. The bill provides for a private right of action for injunctive relief and to recover compensatory damages and reasonable attorney fees. The governor is currently reviewing the bill and has until November 13, 2021 to sign it, veto it, or take no action and allow it to become law without his signature. The bill will take effect immediately upon approval. It is expected that he will allow it to become law, though some local businesses have raised concerns about it.
• West Virginia: Businesses operating in West Virginia that require persons to receive a COVID-19 vaccine or present documentation of vaccination as a condition of employment or hiring must exempt persons who present (1) a certificate signed by a licensed healthcare provider stating that the person has developed COVID-19 antibodies as a result of previous exposure to the virus, or the person’s health is such that vaccination is otherwise contraindicated or inadvisable; or (2) a notarized certificate executed by the person stating vaccination is against their religious beliefs. Employers are prohibited from taking adverse action against persons who request exemptions, including termination or reduction in benefits. The bill permits persons or entities harmed by a violation to seek injunctive relief. The bill took effect on October 20.

Illinois is also experiencing significant legal developments around COVID-19 vaccine mandates in its courts, where employees have cited the Illinois’ 1998 Health Care Rights of Conscience Act (Conscience Act) as claimed justification for refusing to receive the vaccine. This led the state legislature to pass a clarifying amendment, which does not take effect until June 2022.

The Conscience Act is a rarely invoked 1998 statute that the lawsuits argue makes it unlawful for employers to discriminate in employment “because of” a person’s “conscientious refusal to receive [or] obtain … any particular form of health care services contrary to his or her conscience.” It appears to have been designed primarily to protect the rights of healthcare providers from having to provide medical services contrary to their conscience (i.e., abortion-related services). However, given the statute’s broad language, litigants are now arguing that it extends to all employees and prevents employers from terminating an employee for refusing to receive the COVID-19 vaccine.

This led the Illinois state legislature to pass an amendment to the Conscience Act on October 28 that exempts COVID-19 measures, such as vaccine mandates, from the act. The legislature failed to muster the required super-majority to give the amendment immediate effect, so the law will only apply to actions commenced or proceeding under the Conscience Act as of June 1, 2022. The governor of Illinois signed the legislation on November 9.

In the interim, plaintiffs have continued to raise the Conscience Act in requests for temporary injunctions against employer vaccine mandates. Illinois state judges have granted those requests in at least three cases at the state level. These temporary restraining orders prohibit the employers in question from imposing adverse actions against employees who refuse to receive a COVID-19 vaccine based on their conscience. There do not appear to be any federal court decisions involving the application of the Conscience Act to a vaccine mandate at this time.

Implications for Employers

This emerging patchwork of state regulation related to COVID-19 vaccination mandates presents significant compliance challenges for employers.

Employees will continue to argue, including in the courts, that laws challenging adverse action against employees who refuse to receive a COVID-19 vaccine effectively prevent employers from enforcing vaccine mandates. They also will argue that some of these new state law measures can limit employer efforts to incentivize vaccination and impose different safety standards on vaccinated versus unvaccinated employees (e.g., permitting vaccinated employees to not wear masks).

Statutes that raise additional carve outs for medical or religious objections reduce the effectiveness of mandates for the overall employee population. They also often ask employers to go against guidance from public health authorities, like the Centers for Disease Control, to the extent that they suggest that proof of prior infection or evidence of COVID-19 antibodies is equivalent to COVID-19 vaccination.

As noted above, OSHA believes these laws are preempted by the ETS, which encourages vaccine mandates and only permits limited medical and religious exemptions granted under the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964. The federal government similarly maintains that employers covered by the federal contractor vaccine mandate only need to comply with those guidelines and the limited exemptions they provide, regardless of states’ efforts to regulate in this area. Although there are solid arguments for preemption and for the supremacy of the federal contractor guidance over contrary state law, it is expected that those positions will be challenged in court and thus employers may lack clarity on these issues for quite some time. Also, as the Fifth Circuit’s stay indicates, the ETS itself will be subject to legal challenge as well.

In the interim, employers will be wise to weigh their risk tolerance and continue to monitor developments in this space closely, especially employers subject to federal vaccine requirements for federal contractors or subject to the OSHA ETS.

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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers: 

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Howard J. Young