Ingram's December 2022

O F C O U N S E L

by Mark Opara and Cody Weyhofen

One Year Later: Revisiting COVID-19 Vaccine Mandates

Legal challenges leave employers with multiple changes to consider, often depending on the sector they’re in. In late 2021, President Biden announced a series of swe eping vaccine mandates as part of his administration’s plan to combat the COVID-19 pandemic. Among the most-far reaching mandates were the Occupational Safety and Health Administration Emergency Temporary Standard, the Centers for Medicare and Medicaid Interim Final Rule, and the federal contractor vaccine mandate. Since announced, these mandates have received tremendous pushback at the state level, leaving many employers in the dark about how to comply. The OSHA Emergency Temporary Standard. The ETS requires all private employers with at least 100 employees to have a fully vaccinated work force, or, in the alternative, require unvaccinated employees to wear a mask and produce a negative COVID-19 test on a weekly basis. On Jan. 13, 2022,

For instance, both Kansas and Missouri banned requiring proof of vaccination status to enter public buildings, use pub- lic transportation, or use other public accommodations. Moreover, Kansas House Bill 2001 provides that if an employer imposes a vaccination policy, the em ployer must also provide exemptions for medical reasons and religious beliefs. Importantly, the employer can not inquire into the sincerity of the religious belief. Since the bill went into effect in November 2021, there have been approximately 350 violations reported to the Kansas Department of Labor. Of these reported violations, investigators determined that only 2.8 percent were actual instances of the em- ployer breaking the law. This low figure demonstrates House Bill 2001 served its purpose in ensuring employees have a means of opting out of the vaccine if they so choose, and other states may follow Kansas’ lead when state legis latures reconvene in 2023. Looking Forward. Outside of the health-care industry, where companies are largely required to mandate vac cination of staff, employers appear to be less adamant in requiring COVID-19 vaccination than they were earlier in the pandemic, given some of the resis- tance from state legislatures (e.g., Kansas) and the legal challenges to federal man- dates. Furthermore, with employers fac- ing ever-increasing recruitment and retention challenges in a tight labor market, the possibility of wider vaccin ation mandates in the employment con- text seems unlikely. To the extent employers do imple mentmandatoryvaccination,theyshould be cognizant of state and federal anti discrimination laws, particularly in the context of employee requests for exemp tions on religious or medical exemption grounds, and should ensure internal pol- icies and exemption forms are created or updated. Employers should con- tinue to monitor future federal and state legal developments and consult legal counsel when exemption or other issues arise.

the Supreme Court blocked enforcement of the ETS throughout the United States. Shortly thereafter, OSHA withdrew the ETS and all related guidance. However, OSHA left open the possibility that it may create a permanent rule for vaccination and testing. The CMS Interim Final Rule. The IFR requ- ires a multitude of health-care providers part icipating in Medicare or Medicaid, including hos- pitals, long-termcare facilities, andnursinghomes, to ensure they have a fully vaccinated work force. Despite facing a barrage of legal challenges, the IFR is still enforceable in all 50 states and the District of Columbia. However, on Nov. 17 of this year, 22 states (including Kansas and Missouri)

Some rules have been tossed by courts; some withdrawn by agencies. That has created potential hurdles for employers.

petitioned CMS to repeal the rule and all related guidance. Accordingly, health-care providers should continue complying with the IFR while monitoring how CMS responds to this latest challenge. The Federal Contractor Vaccine Mandate. The mandate requires the inclusion of a clause in certain contracts with the federal government requiring, among other things, that all contractors, subcontractors, and their employees be fully vaccinated. In December 2021, the District Court for the Southern District of Georgia issued a nationwide injunction staying enforcement of the Contractor Mandate. Although the 11th Circuit narrowed the scope of the injunction to only a handful of states in August 2022, the Office of Management and Budget recently suspended nationwide enforcement of the Contractor Mandate until further notice. State Measures. States have enacted their own legislation geared toward chipping away at the mandates outlined above.

Mark Opara and Cody Weyhofen are members of the corporate law prac tice group for Seigfreid Bingham in Kansas City. P | 816.421.4460 E | mopara@sb-kc.com cweyhofen@sb-kc.com

61

I n g r a m ’ s

Kansas City’s Business Media

December 2022