Page 28 - COVID Executive Order Survival Guide Brochure

• Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (Nov. 5, 2021). OSHA has implemented an Emergency Temporary Standard that will require employers with 100 or more employees to mandate that by January 4, 2022, employees have received all vaccine doses or otherwise provide proof of a negative COVID test (at least weekly) and wear a face mask while in the workplace. The ETS will apply to all employers with 100 or more employees, not just federal contractors and subcontractors. Notably, the more stringent EO 14042 rules preempt any OSHA rules for Covered federal contractors and subcontractors.
• Centers for Medicare & Medicaid Services (CMS) Rule on COVID-19 Health Care Staff Vaccination (Nov. 5, 2021). CMS is requiring health care workers (at facilities receiving Medicare/Medicaid funding) to be fully vaccinated by January 4, 2022. This CMS rule (HERE) applies to all employees, students, trainees, and volunteers who work in a healthcare facility that receives federal funding from Medicare or Medicaid. Similar to the requirements for federal contractors (under EO 14042), there does not appear to be any “opt-out” for testing instead of full vaccination.
What Is The Impact of the Nationwide Injunction Issued By The U.S. District Court In Georgia?
On December 7, the U.S. District Court for the Southern District of Georgia enjoined enforcement of EO 14042. The Georgia decision (formally captioned The State of Georgia v. Joseph Biden, 1:21-cv-163) is the result of a complaint filed by the states of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia. Subsequently, the Court permitted a nationwide trade association (Associated Builders and Contractors, Inc., or ABC) to intervene as a plaintiff as well. The decision to permit ABC to intervene proved particularly impactful in that the Court relied on the national membership of ABC as the basis for applying its injunction nationwide.
Following issuance of the nationwide injunction and subsequent appeal to the 11th Circuit, the U.S. Government moved the district court to clarify whether the injunction applied only to the vaccine mandate or to the entirety of EO 14042. On January 21, the Georgia District Court clarified that its injunction was intended to enjoin only the vaccine mandate. In other words, it does not enjoin the masking or physical distancing requirements of the Executive Order.
In short, at least for the time being, the Georgia injunction prohibits the Government from enforcing the vaccination requirement in any U.S. state or territory. While the injunction does not prohibit contractors from voluntarily continuing to follow the Guidance of the Safety Task Force – or from mandating vaccines for their employees – contractors in states that prohibit vaccine mandates (or prohibit employers from requesting proof of vaccination or enforcing mask mandates) do so at great risk.
In light of the Georgia District Court’s clarification on the scope of its injunction, it is important to note, too, that other District Courts issued injunctions that impact enforcement.
PAGE 28 | EXECUTIVE ORDER 14042 SURVIVAL GUIDE
www.sheppardmullin.com