Principal Research Analyst
In September 2021, President Biden released his “Path Out of the Pandemic COVID-19 Action Plan,” which set forth plans to increase COVID-19 vaccination rates for certain groups. An overview of these actions, and subsequent state responses, follows.
Private Employer Mandate
On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) mandating private employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work.
In January 2022, the U.S. Supreme Court held that the broad approach by OSHA to regulate all private employers with 100 or more employees was impermissible as the ETS took on “the character of a general public health measure, rather than an occupational safety or health standard.”[Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 211 L. Ed. 2d 448, 142 S. Ct. 661, 665.] With this ruling, the Court said OSHA could not enforce the ETS while litigation challenging the standard is ongoing and, subsequently, OSHA withdrew the ETS on January 25, 2022.
Following this decision, large businesses nationwide could not be required to mandate vaccines for employees, but states and individual businesses could enforce their own vaccine requirements, as outlined below.
During the 2021 Kansas Special Session, legislation was passed on November 22, 2021, providing that if employers do require vaccinations, medical and religious exemptions must be provided and allowing an employee to file a complaint with the Secretary of Labor alleging that an employer failed to offer an exemption, improperly denied an exemption request, or took another punitive action against the employee related to a requested exemption.
As of November 2022, no state has mandated vaccinations for private employers, and 14 states have limitations on employer mandates, such as requiring exemptions and other accommodations. Montana has prohibited all private employers in the state from mandating vaccinations. Twelve states have required vaccinations for state employees, and 15 states have prohibited such mandates for state employees.
Federal Contractor Mandate
On September 9, 2021, President Biden issued Executive Order 14042, mandating COVID-19 vaccinations for all employees working for federal contractors and subcontractors.
In December 2021, the U.S. District Court for the Southern District of Georgia ruled President Biden had likely exceeded his authority in issuing the executive order, and ordered a nationwide injunction on the federal contractor mandate. On August 28, 2022, the U.S. Court of Appeals for the 11th Circuit ruled that the nationwide injunction on the vaccine mandate was overbroad and narrowed the scope of it to apply to the plaintiffs in the case (seven states, including Kansas).
Other courts have issued separate injunctions for several states that block the enforcement of the mandate while litigation continues, and the Biden administration has stated it will not enforce the mandate until further notice.
On November 4, 2021, the Centers for Medicare and Medicaid Services (CMS) issued an emergency rule requiring staff of health care facilities that receive CMS funding to be vaccinated for COVID-19.
In January 2022, the U.S. Supreme Court upheld the mandate, stating CMS has the authority to impose requirements on those facilities as a condition of their Medicaid and Medicare participation, and because facilities in the programs have long been required to follow certain rules, including those about infection prevention and control. In October 2022, the Supreme Court declined to hear a petition appealing this decision, filed by a group of ten states (including Kansas).
On March 29, 2022, Governor Kelly announced Kansas state regulators would not enforce the health care worker mandate, resulting in a $350,000 cut in CMS funding. In response, Attorney General Schmidt asked the U.S. Supreme Court to review the legality of the mandate on May 12, 2022.
On November 17, 2022, a coalition of 22 states filed a petition under the federal Administrative Procedures Act requesting CMS to repeal its rule implementing the mandate and related guidance.
Department of Defense (DoD) Mandate
Secretary of Defense Lloyd Austin announced in August 2021 that all members of the Armed Forces under DoD authority on active duty or in the Ready Reserve, including the National Guard, must receive the COVID-19 vaccination. Each branch followed its own deadline for vaccination compliance, the last of which was June 2022, for National Guard members.
DoD has stated that National Guard members who do not show proof of vaccination and do not qualify for an authorized exemption will not be paid by the federal government when they are activated on federal status, including monthly drill weekends and the two-week annual training period. National Guard leadership has stated it foresees a drop in enlistment of 9,000 members nationwide in federal fiscal year 2023 if current vaccination policy continues.
Other Armed Forces branches have begun separating members for noncompliance with the mandate, but National Guard leaders have not begun formally separating any members as of November 2022.
Governors in seven states have formally asked Secretary Austin to not enforce the mandate for Guard members, and Alaska, Oklahoma, and Texas have filed lawsuits on behalf of their National Guard members. A number of individual servicemembers have also joined lawsuits based on the DoD’s refusal to grant requested religious exemptions.