This time last year we were excited about the release of the COVID-19 vaccine, EMS being placed among the first to receive, and a vision of a brighter tomorrow where the pandemic was in our rear view mirror. Fast forward to the late fall, early winter of 2021. There were numerous federal court vaccine mandate injunctions, other federal courts refusing to issue similar injunctions, and employees threatening to quit if they are mandated. All of this is leaving EMS leaders having to choose between regulatory compliance and an angry workforce.
How did we get here? Early in September 2021, the Biden Administration, in the face of low vaccination rates and a rise in COVID-19 variant cases, issued several executive orders that required vaccination for federal contractors, certain certified facilities employees, and large employers. In each instance, the agencies utilized an emergency rulemaking process that circumvented the Notice and Comment Rulemaking Process. Administratively, the emergency rule making process permits an agency to draft Emergency Temporary Standards when a “grave danger” exists such that the usual rule making process is not practicable to appropriately protect individuals.
The rules were published in early November, roughly sixty (60) days after the issuance of the executive orders. Immediately following the publishing of the new rules, several states and other interest groups filed legal actions seeking temporary injunctions to prevent the rules from taking effect. There were several claims asserted in each of the cases but a common theme was that the agencies violated the law when they issued the various ETS’ because no more “grave danger” existed in November 2021 than did in January or February 2021.
On November 29, 2021, the United States District Court for the Eastern District of Missouri - Eastern Division issued a preliminary injunction staying the Centers for Medicare and Medicaid Services (CMS) Mandatory Vaccination Emergency Temporary Standards (ETS) which were set to take effect on January 4, 2022. This preliminary injunction only applied to healthcare providers in the states of Missouri, Nebraska, Arkansas, Kansas, Iowa, Wyoming, Alaska, South Dakota, and New Hampshire.
On November 30, 2021, the U.S. District Court for the Western District of Louisiana granted a nationwide preliminary injunction which expanded the Missouri court’s injunction to the states not represented in the Missouri case. In other words, the CMS mandatory vaccination rules were enjoined in all states in the U.S.
In a separate action, on the same day, the United States District Court for the Eastern District of Kentucky - Central Division Frankfort issued a preliminary injunction stating the Federal Contractor Mandatory Vaccination requirements which were also set to take effect on January 4, 2022. That injunction only applied to Kentucky, Ohio, and Tennessee. Three days later, on December 2, 2021, the United States District court for the Southern District of Georgia – Augusta Division expanded the Kentucky ruling to a nationwide injunction.
On December 15, 2021, the U.S. Court of Appeals for the 5th Circuit overturned the injunction on the CMS vaccination requirements for the states of California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington, and Wisconsin. Resulting in an affirmation of the injunction in the remaining 24 states in the U.S.
On December 17, 2021, the U.S. Court of Appeals for the 6th Circuit issued a ruling which overturned the OSHA Vaccination & Testing injunction meaning that all employers of 100 or more employees must mandate vaccination or require masking and weekly COVID-19 testing for all employees.
These various court rulings have left employers wondering what steps, if any, they should take given the timing of the vaccination series injection schedule to ensure compliance by the rules deadline. Many had already announced their mandatory vaccination policies to their employees and were busy processing vaccination exemption requests.
Under the rules, employees were able to request exemptions from the vaccine mandates due to protected medical or religious reasons. While many employees had previously been subject to mandatory vaccination requirements for things such as influenza, varicella, and other illnesses with little or no hesitation, there was fierce objection to the COVID-19 vaccine. Despite this, employers still have an obligation to assess each exemption request as they would any other accommodation request under the Americans with Disabilities Act (ADA) or Title VII of the Civil Rights Act of 1964.
In managing all exemption requests, having a consistent process is critical. The company policy needs to clearly state the process for requesting an accommodation, what information may be required, an outline of the interactive process, and the manner for communicating what accommodation, if any, the employer may be able to furnish. Documentation of this process is key. Employers should log all requests including a detail of the process tracking. This will permit the employer to ensure consistency in managing accommodation requests and ensure a greater likelihood of compliance with the law.
Handling accommodation requests must be assessed on a case-by-case basis and are an incredibly tricky legal process. Employers should consult with their local legal counsel to ensure that their process is compliant and adequately protecting both the employers and the employee. I expect that there will be a rise in the claims filed with the Equal Employment Opportunity Commission (EEOC) over the next few months.
This article was written in late December 2021, as with the various changes coming out, information may have changed since the writing of this article.