Beyond the OSHA ETS and CMS Rule: What’s Up With Biden’s Executive Orders?

The U.S. Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) met its demise at the Supreme Court of the United States on January 13, 2022. That same day, the Court allowed a vaccine rule promulgated by the Centers for Medicare & Medicaid Services (CMS) to enforce its healthcare interim final rule. But what’s the status of Executive Orders (EO) 14042 and 14043, which require certain federal contractors and all executive-agency federal employees to comply with workplace safety rules, including vaccinations? Here’s an update.

Executive Order 14042

So far, there is no split in the appellate courts that would trigger review of the federal contractor vaccine mandate by the Supreme Court of the United States. On December 17, 2021, the Eleventh Circuit Court of Appeals denied the Biden administration’s appeal seeking to stay the enforcement of a nationwide injunction, which has paused implementation of EO 14042. Within two weeks, the Sixth Circuit Court of Appeals affirmed a similar stay in in Ohio, Kentucky, and Tennessee; the appeal is still pending on the preliminary injunction entered by the lower court. Two appeals have recently been docketed with the Fifth and Eighth Circuits, and there are numerous challenges in the lower courts still percolating.

In light of the multiple stays and injunctions that are pending, the Biden administration’s Safer Federal Workforce Taskforce has notified federal contractors that it will not enforce the requirements of EO 14042 where the contract place of performance is in a U.S. state, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, or minor outlying islands (Baker Island, Howland Island, Jarvis Island, Johnson Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, and Wake Atoll).

Executive Order 14043

President Biden’s workplace safety protocols for federal employees (and onsite federal contractors) required all federal executive agency employees to be vaccinated by November 22, 2021, except in limited circumstances when an accommodation is legally required. Subsequently, the Office of Personnel Management (OPM) and Office of Management and Budget (OMB) issued an announcement on November 19, 2021, that directed agencies to wait until January 2022 to discipline noncompliant federal employees. As recently as January 11, 2022, the Safer Federal Workforce Task Force updated its Frequently Asked Questions (FAQs) guidance for federal employees.

Among other rulings, a December 2021 order of the United States District Court for the District of Columbia declined to enjoin EO 14043, while an order of the Northern District of Texas this month blocked a defense agency from punishing employees who sought religious exemptions to EO 14043’s vaccine mandate.

On January 21, 2022, the Southern District of Texas preliminarily enjoined the enforcement of EO 14043 nationwide. In a 20-page opinion, Judge Jeffrey Vincent Brown of the Southern District of Texas found it “a bridge too far” to condone EO 14043’s requirement for millions of federal employees to undergo vaccination as a condition of employment. The Biden administration has already filed an appeal with the Fifth Circuit Court of Appeals.

Of course, despite the current appeals noted above with regard to both of these executive orders, federal contractors may still implement voluntary vaccination and/or testing mandates for their employees. Whether federal agencies can or will impose their own agency-specific workplace safety protocols for employees and contractors working at federal workplaces remains to be seen.

Ogletree Deakins’ Affirmative Action and OFCCP Compliance Practice Group will continue to monitor developments regarding the litigation surrounding both of these executive orders and will post updates on the firm’s Affirmative Action / OFCCP blog, with any additional news. Important information for employers is also available via the firm’s webinar and podcast programs.