The vaccine mandates President Biden announced on September 9 have not aged well. Two are enjoined nationwide and a skeptical Supreme Court so undermined one that the government withdrew it, at least for the immediate future. Only one, an interim final rule applicable to employees at healthcare facilities receiving Medicare and Medicaid funds, is still standing. And it is questionable whether that mandate will remain in place once it becomes clear what the impact on operations will be on attrition caused by requiring personnel at those medical facilities to be vaccinated irrespective of their personal objections (those employees can apply for medical or religious accommodations, but the exceptions are narrow).
While three of the federal mandates are unraveling, contractors should understand their current status and continue to monitor them. Litigation is ongoing, so it is possible, although increasingly unlikely, that two of them – the federal contractor and federal employee mandates – will be back. In addition, several federal facilities are still requiring as a condition of entry that contractor employees working on those facilities sign certifications as to their vaccination status and, if not vaccinated, present a negative COVID-19 test within the prior 72 hours.
The Mandates Are Collapsing
Last fall, President Biden announced the following four mandatory vaccination requirements that he hoped would increase the number of Americans vaccinated against COVID-19:
- The federal contractor mandate that we have written about extensively on this blog (Executive Order (EO) 14042).
- A requirement that federal employees be vaccinated (EO 14043).
- An Occupational Safety and Health Administration vaccination or testing Emergency Temporary Standard applicable to companies with 100 or more employees.
- A CMS interim final rule requiring employees at Medicare- and Medicaid-certified facilities be vaccinated as a condition of participation.
As discussed below, the mandates have not fared well.