Policy Matters Newsletter - December 3, 2021

CMS And Federal Contractor Vaccine Mandates Blocked By Numerous Article III Judges. On Monday, a federal judge in Missouri issued a preliminary injunction declaring the Centers for Medicare & Medicaid Services’ (CMS’) emergency interim final rule -- which would have required employees of certain healthcare facilities to be vaccinated against COVID-19 -- unlawful, but limited the scope of the injunction to 10 states (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming). A day later, a federal judge in Louisiana expanded the injunction to touch every citizen regardless of geography: “In addressing the geographic scope of the preliminary injunction, due to the nationwide scope of the CMS Mandate, a nationwide injunction is necessary due to the need for uniformity.”

On the federal contractor side, a federal judge in Kentucky recently issued a preliminary injunction halting the Biden administration’s enforcement of the federal contractor vaccine mandate in Kentucky, Ohio, and Tennessee. The judge determined that President Biden likely did not have the authority to impose vaccines on employees of federal contractors, despite his congressionally delegated authority to manage federal procurement. Notably, the injunction only applies to federal contractors in the three states in the Sixth Circuit, which had filed lawsuits challenging the manddate which does not include Michigan. The court declined to issue a nationwide injunction, but it is possible that another federal court could issue one if it decides it to be warranted, as happened with the CMS mandate. In the meantime, federal contractors and subcontractors should be prepared for the possibility of differing opinions and a jurisdictional patchwork of states in which an injunction applies and those in which one does not. The Biden administration’s task force has already pushed the vaccine deadline back from December 2021 until January 2022. Come January, it is likely that the administration will make all efforts to enforce the mandate, including through the courts.

Build Back Better Act Update. The reconciliation package remains in senatorial limbo, despite Senate Majority Leader Chuck Schumer’s announcement that he intends to bring the bill to the floor of the Senate before the Christmas holiday. As has been the legislative story of 2021 to date, the current wrench in the Majority Leader’s timeline is due, in part, to Senator Joe Manchin’s line drawing. The Senator from West Virginia will not commit to the timeline for voting on the Act. While we wait for any word of progress from Washington, one piece of the measure that should be highlighted is a provision that would effectively prohibit employers -- through hefty fines -- from requiring class and collective action waivers as a condition of employment. If the provision passes the Parliamentarian’s sword, and if the broader Act is actually enacted in its current iteration, BBB would provide for an unfair labor practice charge any time an employer requires an employee to waive class or collective actions. BBB also drastically ups the amount of the penalty for an unfair labor practice to $50,000 per violation ($100,000 for repeat offenses). Yikes.

NLRB Issues Memo Regarding OSHA ETS Bargaining Obligations.  As this readership is well aware, and as we have reported on numerous times recently, including here, OSHA issued an ETS requiring employers with 100 or more employees to implement mandatory vaccination policies by January. The NLRB’s General Counsel recently issued a memo setting forth her position on the collective bargaining obligations of unionized employers in implementing the ETS.  Specifically, she writes that “employers would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment--to the extent the ETS provides employers with choices regarding implementation.” She also notes that, in addition to being legally required to bargain over the implementation of the ETS, to the extent employers have discretion in doing so, they must bargain over the effects of implementation on employees. Disappointingly, the memo does not provide any examples or details regarding what aspects of implementation of the ETS may be discretionary. On its face, the ETS does not appear to afford employers discretion, which creates a bit of a strange situation.  Until further guidance is issued to clarify exactly what employers are obligated to bargain over, employers should be aware that the NLRB will likely be vigorously investigating charges regarding the implementation of the ETS. To avoid/defeat such charges, employers should make efforts to engage their employees’ unions while implementing the ETS and bargain over the effects of implementation upon request.

New Travel Bans In Light Of COVID-19 Variant -- Omicron. As of the writing of this newsletter, the Omicron strain of COVID-19 has now been recorded in at least six states (and is likely much more widespread): California, New York, Minnesota, Nebraska, Hawaii, and Colorado. Only time, and science, will tell if this variant can outcompete the Delta variant that swept the nation over the summer. In the interim, the Government has instituted certain travel bans in the name of containing the spread of Omicron in the U.S. As Seyfarth noted here, since the emergence of the new variant, the Biden Administration has issued travel bans impacting non-citizens only who have stayed in 8 African countries within 14 days of entering the U.S.:  the Republic of Botswana, the Kingdom of Eswatini, the Kingdom of Lesotho, the Republic of Malawi, the Republic of Mozambique, the Republic of Namibia, the Republic of South Africa, and the Republic of Zimbabwe. Before this ban, the Biden Administration’s travel policy was based on vaccination status, so this is a significant change of course. Canada has also recently bolstered its travel policy in light of Omicron, banning any foreign nationals who have been to certain delineated countries in Southern Africa.

EEOC Clarifies Technical Guidance On COVID-19. We here at the PMN have been updating our readers on any additional guidance from the EEOC as it relates to COVID-19 since the onset of the pandemic.  Recently, the EEOC updated its COVID-19 technical assistance resources to add guidance on pandemic-based employer retaliation and interference. Seyfarth’s guide on the new technical assistance is helpful, and can be found here.

OSHA ETS Comment Period Extended to Mid-January.  Earlier this week, while enforcement of its own ETS is on pause, OSHA extended the comment period for the COVID-19 vaccination and testing ETS to January 19, 2022.  This 45-day extension was issued to allow stakeholders additional time to review the ETS and to collect information necessary for comment.  OSHA highlighted several issues on which it is particularly interested in comments, including whether employers with fewer than 100 employees should be covered by a potential final standard, whether masking requirements should apply to fully vaccinated workers, whether OSHA should impose a vaccine mandate without alternative compliance options, and others.  Employers should consider whether submission of a comment to OSHA might be in their best interest, and of course Seyfarth is happy to assist with preparation and submission of such comments.