Insight | December 8, 2021
On Thursday, September 9, 2021 President Joe Biden announced his Path Out of the Pandemic: President Biden’s COVID-19 Action Plan, which outlined the president’s strategy in fighting the pandemic. The plan focuses on employer vaccine mandates and testing programs, including mandatory vaccination for federal employees and contractors, and vaccination or weekly tests for private employers with 100 or more employees. Each is summarized below.
Federal Contractor Mandate
On Thursday, September 9, 2021, President Biden issued Executive Order (EO) 42014 which required federal agencies to include clauses in most federal contracts (Covered Contracts) requiring their federal contractors and subcontractors to mandate full vaccinations against COVID-19 for their employees. The EO directed the White House’s Safer Federal Workforce Task Force (Task Force) to issue additional guidance. On Friday, September 24, 2021, the Task Force issued its guidance and on Thursday, September 30, 2021, federal agencies began issuing agency-specific guidance. Examples of agency action include DOD Deviation 2021-O0009; GSA Class Deviation CD2021-13; and HHS Class Deviation 2021-03.
The federal contractor vaccine mandate applies to all federal contractor employees working on or in connection with a Covered Contract, except those individuals entitled to accommodation for disability or sincerely held religious beliefs. Federal agencies must include the vaccine clause in virtually all federal contracts, with the exception of federal grants, contracts with Indian Tribes, contracts below the simplified acquisition threshold (less than $250,000), contracts involving employees working outside the United States, and contracts solely for the provision of products. However, federal contractors may include the vaccine clause in these contracts, and have been specifically encouraged to do so for contracts under $250,000 and involving the sale of products. The vaccine clause must be flowed down to all subcontractors at any tier.
Legal Status of Federal Contractor Mandate
More than a dozen lawsuits have been filed in federal courts challenging the mandate. This includes a lawsuit filed by the State of Florida in the District Court for the Middle District of Florida. On December 7, 2021, the Federal District Court for the Southern District of Georgia (Augusta Division), in the case of Georgia v. Biden entered a preliminary injunction enjoining the enforcement of the federal vaccine mandate for federal contractors and subcontractors in any state or territory of the United States. This came on the heels of an order issued by the Federal District Court for the Eastern District of Kentucky issuing a mandatory injunction prohibiting implementation of the mandate Kentucky, Tennessee and Ohio. So for now, federal agencies will not be enforcing the vaccine mandate for federal contractors. An analysis of the Georgia v. Biden case can be found in a previous GrayRobinson update here.
OSHA Emergency Temporary Standard
On Thursday, November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) requiring covered private employers, including private universities, with 100 or more employees, to create and enforce a policy which requires their employees to either become fully vaccinated against COVID-19 or undergo weekly testing for the virus. The ETS took effect on Friday, November 5, 2021.
The ETS requires employers to:
- Establish, implement, and enforce a written policy on vaccines, testing, and face coverings;
- Provide paid time off to employees to receive their vaccination, as well as provide paid sick leave to recover from side effects of the vaccine;
- Maintain records of employee vaccination status; and
- Comply with certain notice and reporting requirements when there is a positive COVID-19 case.
Legal Status of OSHA ETS
On Saturday, November 6, 2021, the U.S. Fifth Circuit Court of Appeals issued a stay order blocking enforcement of the ETS until it could be evaluated in more depth. That stay was extended and on Tuesday, November 16, 2021, a “lottery” was held assigning all pending challenges to the ETS to the Sixth Circuit Court of Appeals. OSHA then suspended implementation of the ETS until resolution of the litigation.
Florida Vaccine Statutes
Following a special session of the Florida Legislature, Governor Ron DeSantis signed into law House Bill 1, which includes a new Florida Statute Section 381.00317. The statute prohibits private employers, such as private universities, from imposing vaccine mandates on their employees, unless they also offer such employees the ability to assert five different individual exemptions from the requirements. Those exemptions are as follows:
- Medical reasons, including, but not limited to, pregnancy or “anticipated pregnancy”;
- Religious reasons (as certified by a licensed physician or physician assistant);
- COVID-19 immunity (based on prior COVID-19 infection; however, no time limit is placed on how long ago the infection occurred);
- Periodic testing (no more frequently than once per week per the official forms); and
- Use of employer-provided personal protective equipment (not specified).
It further provides that Employers shall use forms adopted by the Department of Health (DOH), or substantially similar forms, for employees to submit their exemption statements. Forms can be found here. The statute also provides “If an employer receives a completed exemption statement authorized by subsection (1), the employer must allow the employee to opt out of the employer's COVID-19 vaccination mandate.” In other words, the employer does not have the right to question the substantive basis asserted by the employee for the exemption.
While the statute does not create a private right of action against the employer for violation of the statute, an employee who has been terminated for failure to comply with a vaccine mandate may file a complaint with the Department of Legal Affairs (DOH), alleging that an exemption has not been offered, or has been improperly applied or denied. The Department of Legal Affairs will then conduct an investigation and if the employer is found to have improperly terminated the employee, the employer is subject to a fine of up to $50,000, depending on the size of the employer and other factors described in the statute. However, the employer may avoid the fine by reinstating the employee with back pay prior to issuance of the final order.
The statute also directs the Department of Health issue emergency rules to fill in some gaps in the statute, including specifying the requirements for the frequency and methods of testing which may be used by employers, standards for determining what is competent medical evidence indicating the employee has immunity to COVID-19, specifying circumstances that are considered an anticipated pregnancy, and creating the standard exemption forms. A copy of the current emergency rule can be found here. The Department of Legal Affairs and Florida Department of Economic Opportunity are also authorized to adopt emergency rules in other areas. The DLA has added an FAQ to their website which can be found here.
For public universities, HB 1 also creates Section 381.00319 of the Florida Statutes, which provides an “Educational Institution,” defined as “an institution under the control of a district school board; a charter school; a state university; a developmental research school; a Florida College System institution; the Florida School for the Deaf and the Blind; and the Florida Virtual School,” may not impose a COVID-19 vaccine mandate on any student. It further authorizes a parent, emancipated, or adult student to seek injunctive relief to void the mandate and, if successful, recover their attorneys’ fees and court costs.
Finally, HB 1 creates Florida Statute Section 112.0441, which prohibits any governmental entity or public educational institution from imposing a COVID-19 vaccination mandate for any full-time, part-time, or contract employee. The Department of Health may impose a fine not to exceed $5,000 per violation.
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