States and Courts Muddy Waters for Vaccination Mandates

Author: Michael Cardman, Brightmine Legal Editor

December 1, 2021

As if it weren't challenging enough for employers to comply with the various federal vaccination mandates, recent developments have complicated matters even further:

• Several states - including Alabama, Arizona, Florida, Iowa, Tennessee, Texas, Utah and West Virginia - have enacted laws that limit or even prohibit private employers from mandating that employees get vaccinated.
• A federal court issued a preliminary injunction blocking the Centers for Medicare and Medicaid Services' vaccine mandate in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming.
• Meanwhile, another federal court issued a preliminary injunction blocking the Biden administration from implementing its vaccination mandate for federal contractors in Tennessee, Ohio and Kentucky.
• The federal appellate court hearing challenges to OSHA's ETS for private employers with 100 or more employees set forth a schedule under which the ETS will continue to be stayed until at least December 10.

These changes pose several challenges for employers including:

• Deciding how much effort to put into preparing to comply. Given the fluid situation with the various federal mandates, some employers may be tempted to take a wait-and-see approach. However, employers will not want to be caught flat-footed if the mandates are reinstated. Employers must weigh the costs and benefits of deferring preparations.
• Navigating preemption issues. The federal mandates typically will preempt any state laws that conflict. However, Jonathan Segal, a partner with Duane Morris in the firm's Employment, Labor, Benefits and Immigration Practice Group and managing principal of the Duane Morris Institute, observed that not all aspects of the new state laws are necessarily in conflict with the federal mandates. For example, the OSHA ETS encourages, but does not require employers to have unvaccinated employees bear the costs of their own testing and, potentially, their removal. This may not preempt a state law that requires employers to pay for testing as part of an accommodation or a state law that may require payment for medical testing, Segal noted.
• Reconsidering return-to-work plans Because the vaccination and testing mandates do not apply to full-time remote employees, Segal said some employers are simply delaying return-to-work plans.