Vaccine mandates leave employers uncertain

Dean Harris

A patchwork of COVID-19 vaccination mandates and new government rules has left employers uncertain of their legal rights and responsibilities. They’re wondering how to make sense not only of what’s happened but also what the future could hold.

Several rules could affect Grand Valley employers. On Aug. 30, the Colorado Board of Health adopted an emergency rule — 6 CCR 1101-1, Chapter 2, Part 12 — mandating all employees, direct contractors and support staff in licensed health care settings in Colorado receive their first doses of COVID-19 vaccines by
Sept. 30 and be fully vaccinated no later than Oct. 31. All covered employees are also required to obtain a booster dose of COVID-19 vaccinations should one be recommended by the Advisory Committee on Immunizations Practices within the national Centers for Disease Control and Prevention.The rule also requires health care facilities to hire only fully vaccinated workers after Oct. 31. The law provides a religious exemption as well as a medical exemption when the vaccination is medically contraindicated as described in the product labeling approved or authorized by the U.S. Food and Drug Administration.

On Sept. 9, President Joe Biden announced his Path Out of the Pandemic COVID-19 Action Plan. The plan includes several provisions. 

First, Executive Order EO 14042 requires employees of certain federal contractors to be vaccinated by Dec. 8.  The order applies to contracts with federal executive branch departments and agencies. Covered contractor employees are those employees working on federal contracts and any other contractor employees at a contractor workplace where those working on covered contracts are likely to be present.  

Second, Executive Order 14043 requires vaccinations for all federal executive branch employees, even remote employees, by Nov. 22. In both cases, affected employees must provide documentation to prove vaccination status. While disability and religious exemptions are available, there’s no opt-out alternative by submitting to regular testing.

Third, the Centers for Medicare & Medicaid Services in collaboration with the CDC announced emergency regulations requiring vaccinations for nursing home workers will be expanded to include ambulatory surgical settings, dialysis facilities, home health agencies and hospitals, among others, as a condition for participating in the Medicare and Medicaid programs.

Finally, the Occupational Safety and Health Administration is developing an emergency temporary standard (ETS) requiring all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce negative test results on at least a weekly basis before coming to work. The Biden Plan calls for the ETS to provide paid time off for workers to get vaccinated and recover post-vaccination. The OSHA standard doesn’t apply to municipalities, counties and other government agencies. Employers with employees outside Colorado should be aware some states enforce their own OSHA rules, which might or might not include the public sector.

The OSHA ETS will almost certainly draw a legal challenge. An ETS takes effect immediately until superseded by a permanent standard. OSHA must demonstrate a “grave danger” due to exposure of a “new” hazard such that an ETS is required to protect workers. Once the standard is published in the Federal Register, it becomes effective.  The ETS lasts for no more than six months, in which time OSHA must propose a permanent rule subject to full rulemaking requirements if it wishes a standard to continue. The ETS process was last used in June to institute health care workplace rules to stop the spread of  COVID-19.

In June, OSHA issued an ETS requiring health care providers to take certain precautions to protect employees from COVID-19. The June order didn’t mandate vaccinations.  The June rule took five months for OSHA to formulate after an executive order by Biden. Unions sued to challenge it, claiming the standard didn’t do enough to protect workers outside health care. The outcome of that lawsuit remains undecided. Before June, the use of the ETS process was relatively rare.  OSHA issued nine standards between 1970 and June 2021. Six of those standards were challenged in court. Courts invalidated or halted four of those standards and partially blocked one, according to the Congressional Research Service. Only one ETS survived court scrutiny intact, an ETS dealing with vinyl cyanide.  

President Biden has urged OSHA to act quickly, presumably in less than the five months it took to develop the June ETS. It’s possible the OSHA ETS will be issued before this article goes to press. But even if the new ETS is challenged as expected or the June ETS is invalidated, such victories could be pyrrhic if most affected employers have already complied in the meantime.  

Other challenges remain. The City and County of Denver mandated vaccinations effective Sept. 30 for city employees, private-sector workers in high-risk settings and employees of private organizations who provide services to affected entities either onsite or in the community. On Sept. 29, seven Denver police officers challenged the mandate in Denver District Court. The officers claimed the city didn’t have authority to impose the mandate under a local disaster emergency declared by Denver Mayor Michael Hancock at the beginning of the pandemic because Colorado Gov. Jared Polis rescinded his statewide emergency pandemic order in July. The officers claimed the city should have instead followed the longer process laid out for establishing regulations.

Where does the morass of current and pending rules and challenges to those rules leave affected employers?  Employers who don’t already mandate vaccinations should prepare to verify vaccination status, process available exemptions and handle operational difficulties caused by staffing shortages. Additional information is available from the Employers Council COVID-19 resource page at