COVID-19 vaccine | Fraser Blog

Client Alert: Federal Worker Vaccination Requirement Reinstated!

On April 7, 2022, the United States Circuit Court of Appeals for the Fifth Circuit reinstated President Biden’s executive order (EO-14043) requiring the COVID-19 vaccination of federal employees.

Executive Order 14043 was issued September 9, 2021 mandating all agencies as defined by 5 U.S.C. 105 (excluding the Government Accountability Office) to implement programs requiring COVID-19 vaccination for all of its Federal employees (those defined by 5 U.S.C. 2105), with the exceptions of religious and medical accommodations. Employees were expected to have been fully vaccinated by November 22, 2021 – meaning having received all doses of a vaccination series by November 8th. If employees failed to comply, employer agencies were directed to implement disciplinary action up to and including removal or termination.

Nonetheless, months after many federal employees had already complied with the vaccination requirement, on January 21, 2022 the United States District Court for the Southern District of Texas ordered a nationwide preliminary injunction prohibiting the enforcement of the Order finding that the public’s interest could be better served through less restrictive measures. See Feds for Med Freedom v Biden, No. 3:21-CV-356, 2022 WL 188329 (SD Tex, January 21, 2022), vacated and remanded No. 22-40043, 2022 WL 1043909 (CA 5, April 7, 2022).

Yesterday, the District Court’s Order was overturned by the Fifth Circuit in Feds for Med Freedom v Biden, No. 22-40043, 2022 WL 1043909 (CA 5, April 7, 2022). The question at issue was whether the Civil Service Reform Act of 1978 (“CSRA”), 5 U.S.C. § 1101 et seq., deprived the District Court of jurisdiction and whether Plaintiffs were required to pursue their dispute through the administrative procedure set-out in the CSRA. The Court answered in the affirmative.

For background, the court provided in part:

Under the CSRA, certain federal employees may obtain administrative and judicial review of specified adverse employment actions, such as removals, suspensions for more than fourteen days, pay or grade reductions, and furloughs lasting thirty days or less. Once an employing agency finalizes an adverse action, the aggrieved employee may appeal to the Merit Systems Protection Board (“MSPB”). If the employee prevails on appeal, the MSPB can order the agency to comply with its decision and award “reinstatement, backpay, and attorney’s fees.” 5 U.S.C. §§ 1204(a)(2), 7701(g)). “An employee who is dissatisfied with the MSPB’s decision is entitled to judicial review in the United States Court of Appeals for the Federal Circuit” under § 7703. The Federal Circuit’s jurisdiction over such appeals is “exclusive.” 28 U.S.C. § 1295(a)(9). If an employee appeals to the Federal Circuit, then that court must “review the record and hold unlawful and set aside any agency action, findings, or conclusions” that are “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c)(1)–(3).

Feds for Med Freedom v Biden, at *3 (CA 5, April 7, 2022). Nowhere within the CSRA is there an opportunity for judicial review by a US District Court. After an evaluation of whether Plaintiff’s would have succeeded on the merits, the Court vacated the District Court’s preliminary injunction and ordered dismissal of the case.

As of today, Executive Order 14043 is reinstated nationwide, and federal employees are required to be fully vaccinated. The Safer Federal Workforce Task Force, designated to provide guidance on enforcement, has yet to publish new information. It is expected that new guidance with new deadlines is forthcoming, but as of now, all federal employers can review currently available information here:

For assistance with implementing the requirements of EO 14043, please contact your Fraser Trebilcock attorney.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

Lauren D. Harrington is an associate attorney at Fraser Trebilcock focusing on Employment Law. You can reach her at 517.377.0874, or email her at lharrington@fraserlawfirm.com.

Elizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

Client Alert: SCOTUS Rules on Vaccine Mandate – OSHA’s Mandate Stricken; CMS Mandate Upheld

New Deadlines for Compliance Have Been Announced

On Thursday, January 13, 2022, the Supreme Court of the United States released opinions on the much anticipated vaccine mandate litigation. As discussed in our previous blog posts, late last year the Occupational Safety and Health Administration (OSHA) and the Center for Medicaid and Medicare Services (CMS) published two different vaccine mandates to respond to everlasting Covid-19 pandemic. OSHA’s mandate required all private employers of 100+ to enforce Covid-19 vaccinations on employees OR require them to wear a mask and test weekly. (OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard.) CMS’ mandate subjected virtually all health care workers who work for providers and suppliers that participate in the Medicaid and Medicare programs to a Covid-19 vaccination requirement, allowing for religious and medical exemptions. (CMS Interim Final Rule: Omnibus COVID-19 Health Care Staff Vaccination.) Both mandates were challenged by conservative states resulting in a rollercoaster of litigation prohibiting and then again permitting enforcement. Just before SCOTUS heard the cases on January 7, 2022, the OSHA mandate had been validated by the Sixth Circuit Court of Appeals and OSHA had set new dates for enforcement to begin just a few days later. The CMS mandate, however, had been prohibited in 25 states and ordered eligible for enforcement in the other 25, District of Columbia, and US territories with deadlines for compliance of Phase 1 implementation set for January 27, 2022 and of Phase 2 implementation for February 28, 2022. Nonetheless, the Supreme Court released its decisions, and here is what you should know:

In the case of National Federation of Independent Business v. Department of Labor, the Supreme Court issued a stay on OSHA’s vaccine mandate, putting an indefinite hold on implementation and enforcement of the rule while its validity is challenged at the Sixth Circuit Court of Appeals. In the per curiam opinion, the court held: “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.” While this is not necessarily a final rule, it is almost impossible to foresee any difference in an outcome. The Supreme Court’s stay is a temporary halt as the merits are decided by the Sixth Circuit. However, even if the Sixth Circuit determines that the rule is valid, it will be appealed to the Supreme Court who has just expressed where it stands. Unless Congress takes any action, it will fall on states and employers to develop their own vaccine mandates and safety measures to combat Covid-19 in private workspaces.

Opposite to this defeat, the Biden administration received a victory with CMS’ health care worker vaccine mandate. In Biden v. Missouri, the Supreme Court by a 5-4 decision stayed the preliminary injunctions from the Eastern District of Missouri and the Western District of Louisiana, allowing the implementation and enforcement of the mandate in all jurisdictions except for Texas. Texas initiated its own litigation separate from the injunctions protecting the other 24 states and the Supreme Court’s ruling did not affect its current status. Considering the overwhelming support from health care workers and public health organizations, the court stated that “their support suggests that a vaccination requirement under these circumstances is a straightforward and predictable example of the health and safety regulations that Congress has authorized the Secretary to impose. We accordingly conclude that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.” As with the OSHA decision, this decision too is not a final rule but is unlikely to change once litigation on the merits proceeds through court channels.

As has been announced by several news articles quoting CMS officials today, the deadline to come into compliance (where employees are fully vaccinated) remains the same for the 24 states and D.C. not protected by the Missouri and Louisiana injunctions (including Michigan), which is February 28, 2022. As for the other 24 states (Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Kansas, Louisiana, Missouri, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming), health care facilities are required to have their staff fully vaccinated by March 15, 2022.

As deadlines approach, health care employers should consult with counsel as quickly as possible to establish the policies and procedures necessary to meet the rule’s requirements. Vaccinations are the pinnacle of the mandate, but there is work needed to facilitate reaching that goal.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

Lauren D. Harrington is an associate attorney at Fraser Trebilcock focusing on Employment Law. You can reach her at 517.377.0874, or email her at lharrington@fraserlawfirm.com.

UPDATE: COVID-19 Vaccination Mandates Head for Resolution from the United States Supreme Court January 7, 2022

Occupational Safety and Health Administration’s (OSHA) COVID-19
Vaccination and Testing Emergency Temporary Standard
(Vaccine Mandate for Private Employers of 100+)

Following a nationwide injunction prohibiting implementation and enforcement, on December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay previously placed on OSHA’s Emergency Temporary Standard (“ETS”) … meaning the standard is currently in full effect nationwide.

After reviewing the language of the Occupational Safety and Health Act and the history of OSHA’s participation in curbing other infectious diseases, the court held “OSHA’s authority includes protection against infectious diseases that present a significant risk in the workplace, without regard to exposure to that same hazard in some form outside the workplace. OSHA’s [responsibility] to protect the safety and health of employees, moreover, is hardly limited to hard hats and safety goggles. OSHA has wide discretion to form and implement the best possible solution to ensure the health and safety of all workers, and has historically exercised that discretion.”

Shortly after the court reinstated the vaccine mandate, OSHA announced that it would not issue citations for noncompliance with the mandate’s requirements before January 10, 2022 and would not enforce the standard’s testing requirements until February 9, 2022, so long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard.

Nonetheless, the Sixth Circuit decision of consolidated cases reinstating the mandate was appealed to the United States Supreme Court where the Court decided that it will hear oral argument on applications for stay on January 7, 2022. Until the validity of the mandate is decided by the US Supreme Court, the Sixth Circuit reinstatement and OSHA’s new deadlines are still in effect.

Center for Medicare and Medicaid Services’ (CMS) Interim
Final Rule: “Omnibus COVID-19 Health Care Staff Vaccination”

There have not been many changes since the December 15, 2021 Fifth Circuit stay to the nationwide preliminary injunction of the health care worker vaccine mandate. As mentioned in our latest vaccine mandate blog post, the Fifth Circuit decision prohibited implementation and enforcement of the mandate in 24 states (Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, West Virginia, Kentucky, Ohio, Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming).

On the same day however, a District Court in the Northern District of Texas granted the state’s request for a preliminary injunction, enjoining the Department of Health and Human Services and CMS from implementing and enforcing the mandate against Medicare and Medicaid certified-providers and suppliers in the state of Texas. So adding to that list of states where the mandate is not effective, is Texas, bringing the total to 25. Unlike OSHA, CMS has not announced new deadlines or whether they will begin to enforce the requirements on those providers and suppliers in the other applicable 25 states. CMS appears to be waiting on a final resolution from the US Supreme Court. The validity of this mandate is also set to be heard for oral argument before the US Supreme Court on January 7, 2022.

As the future of both mandates fall upon the conservative-leaning Justices of the United States Supreme Court, it is hard to predict an outcome. Given the Supreme Court’s recent validation of state vaccine mandates in Maine and New York, employers should consult with legal counsel to navigate applicable mandate requirements and stay up to date on recent changes through litigation.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

Lauren D. Harrington is an associate attorney at Fraser Trebilcock focusing on Employment Law. You can reach her at 517.377.0874, or email her at lharrington@fraserlawfirm.com.

Across the Board Halt on Vaccine Mandates: Employers, What Does That Mean for You?

The Biden administration faces setbacks as federal courts across the nation challenge several attempts to employ mandatory Covid-19 vaccinations, leaving employers in limbo. Whether you are a health care provider, federal contractor or private employer of 100 or more, here is the guidance you need to help navigate the current state of vaccine legislation:

As of today, agencies tasked with the execution of mandatory Covid-19 vaccination requirements pursuant to 86 Fed. Reg. 61555 (Health Care Workers), Executive Order 14042 (federal contractors), and 86 Fed. Reg. 61402 (Private Employers of 100+) have suspended all implementation and enforcement pending litigation in federal courts.

Center for Medicare and Medicaid Services’ (CMS) Interim Final Rule:
“Omnibus COVID-19 Health Care Staff Vaccination”

On November 4, 2021, CMS published a rule requiring staff working for Medicare-or Medicaid-certified providers to have the shots necessary to be fully vaccinated against COVID-19 by January 4, 2022 and to receive their first shot prior to December 6, 2021. The Rule applied to:

Ambulatory Surgery Centers.
Community Mental Health Centers.
Comprehensive Outpatient Rehabilitation Facilities.
Critical Access Hospitals.
End-Stage Renal Disease Facilities.
Home Health Agencies.
Home Infusion Therapy Suppliers.
Hospices.
Hospitals.
Intermediate Care Facilities for Individuals with Intellectual Disabilities.
Clinics, Rehabilitation Agencies, and Public Health Agencies as Providers of Outpatient Physical Therapy and Speech-Language Pathology Services.
Psychiatric Residential Treatment Facilities (PRTFs).
Programs for All-Inclusive Care for the Elderly Organizations (PACE).
Rural Health Clinics.
Medicare Federally Qualified Health Centers.
Long Term Care facilities.

Specifically excluded were: Religious Nonmedical Health Care Institutions, Organ Procurement Organizations, Portable X-Ray Suppliers, Assisted Living Facilities, Group Homes, Home and Community-based Services, and Physician’s Offices. All eligible staff, both current and new, working at a facility regardless of clinical responsibility or patient contact were required to comply, including: Facility Employees, Licensed Practitioners, Students, Trainees, Volunteers and Contracted Staff. Even those who performed duties offsite (such as home health, home infusion therapy, etc.) and individuals who entered into a CMS regulated facility were required to be fully vaccinated.

Under this rule, regulated employers were not only required to ensure full vaccination of its staff but to also develop processes for tracking staff vaccinations and verifying medical and religious based exemptions in alignment with federal law (ADA, Title VII of the Civil Rights Act of 1964, etc.). Those who failed to comply were advised they’d face penalties ranging from civil monetary penalties, to denial of payment, and even termination from the Medicare and Medicaid program.

As employers scrambled to meet the first dose December 6, 2021 deadline, the United States District Court for the Eastern District of Missouri, on November 29, 2021, issued a preliminary injunction against the implementation and enforcement of the Rule in ten states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. See Missouri v Biden, (ED Mo, Nov. 29, 2021). And just a day later, on November 30, 2021, the United States District Court for the Western District of Louisiana issued a nationwide preliminary injunction to the same effect. See Louisiana v Becerra, (WD La, Nov. 30, 2021). Between the two of them, these injunctions cover all states, the District of Columbia and the US Territories. CMS has appealed both of these decisions and has filed motions for stays of these orders. Accordingly, as of December 2, 2021, CMS has suspended all activities related to the implementation and enforcement of the Rule pending future developments in the litigation.

Executive Order 14042 – Safer Federal Workforce Taskforce COVID-19 Workplace
Safety Guidance for Federal Contractors and Subcontractors

On September 9, President Biden signed Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, directing executive departments and agencies to ensure that contracts and contract-like instruments covered by the order include a clause requiring the contractor—and their subcontractors at any tier—to, for the duration of the contract, comply with all guidance for contractor or subcontractor workplace locations published by the Safer Federal Workforce Taskforce. The guidance published required contractors and subcontractors who work on contracts of a value over $250,000 to receive full Covid-19 vaccinations by January 18, 2022.

On October 29, 2021, the States of Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia, the governors of several of those states and various state agencies, including the Board of Regents of the University System of Georgia, filed suit seeking declaratory and injunctive relief against enforcement of Executive Order No. 14042. On November 19, 2021, the Director of the Office of Management and Budget (OMB) extended the deadline to comply (ensure full vaccination) from December 8th to January 18, 2022 and provided a public comment period through December 16, 2021. Unsatisfied, Plaintiffs amended their complaint and motion for preliminary injunction; and Intervenors and Amicus Curiae filed briefs in support of their positions. Oral arguments were held December 3, 2021.

In an order issued December 7, 2021, the District Court for the Southern District of Georgia Augusta Division: (1) granted the Associated Builders and Contractors, Inc. (“ABC”) motion to intervene, (2) denied the Associated Builders and Contractors of Georgia, Inc. (“ABC-Georgia”) motion to intervene, (3) found that the Plaintiffs showed a sufficient injury-in-fact to have standing, and (4) issued a nationwide preliminary injunction prohibiting the enforcement of the vaccine mandate for federal contractors and sub-contractors in all covered contracts in any state or territory of the United States pending litigation. See Georgia v Biden, (SD Ga, Dec. 7, 2021). While federal contractors and sub-contractors in Tennessee, Kentucky and Ohio were already discharged from the vaccine requirements due to the injunction issued by the Eastern District of Kentucky November 30, 2021, the injunction issued December 7th is nationwide, including all federal contractors and sub-contractors in Michigan.

In issuing its injunction, the court conducted an analysis of the four requisites entitling a party to a preliminary injunction: (1) a substantial likelihood of ultimate success on the merit; (2) that an injunction or protective order is necessary to prevent irreparable injury; (3) the threatened injury outweighs the harm the injunction would inflict on the non-movant; and (4) the injunction or protective order would not be adverse to the public interest. The court found that the Executive Order went far beyond addressing administrative and management issues in order to promote efficiency and economy in procurement and contracting, and instead in application, worked as a regulation of public health. Simply put, the court found that the Executive Order’s directive and resulting impact radiated too far beyond the purposes of the Procurement Act and the authority it granted to the President. In balancing the interests, the court empathized with the employees who would face termination if they refused the vaccine and stressed the burden on staffing employers would face. While the Safer Federal Workforce Task Force Guidance for Federal Contractors and Subcontractors has not yet been updated, it is clear that enforcement and implementation has been suspended.

Occupational Safety and Health Administration’s (OSHA) COVID-19
Vaccination and Testing Emergency Temporary Standard

On November 5, 2021, OSHA issued a standard requiring all employers with a total of 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work.

The Standard applied to all private employers with 100 or more employees firm or corporate wide. In states with OSHA-approved State Plans, state and local-government employers, as well as private employers, with 100 or more employees were also subject to the requirements. Those who were not required to comply included:

workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety Guidance for Federal Contractors and subcontractors;
settings where any employee provided healthcare services or healthcare support services pursuant to the Healthcare ETS (§ 1910.502);
employers with fewer than 100 employees in total;
and, public employers in states without state plans.

The requirements of the Standard did not apply to employees who did not report to a workplace where other individuals were present, employees who work entirely remote, or employees who work exclusively outdoors.

Employers were given 30 days to come into compliance for most requirements and 60 days for others. Nonetheless, before deadlines approached on November 12, 2021 a nationwide stay was granted by the U.S. Court of Appeals for the Fifth Circuit (with jurisdiction over Louisiana, Mississippi, and Texas) prohibiting further effect and enforcement. See BST Holdings, LLC v OSHA, (CA 5, Nov. 6, 2021). The stay is in effect while the U.S. Court of Appeals for the Sixth Circuit decides the merits of the challenges. The Sixth Circuit was chosen at random to hear the consolidated cases through a lottery system under the procedures governing multi-district litigation. As the Sixth Circuit is predominately comprised of judges nominated by former Republican presidents, those who oppose the mandate foresee the selected jurisdiction will aid in a successful final invalidation. As of December 8, 2021, the US Senate voted 52 to 48 blocking the mandate from enforcement. The resolution still needs to pass through the House of Representatives and President Biden himself. Accordingly, as of November 12, 2021, OSHA has suspended all activities related to the implementation and enforcement of the Rule pending future developments in the litigation.

Moving Forward for Employers

As discussed above, the suspension of these mandates are due to temporary equitable remedies issued by federal district and appellate courts. There has yet to be a final determination on the validity of any Covid-19 vaccine mandate. The US Supreme Court is currently not posed to address this issue, and Congress has yet to do so either. Until vaccination requirements are set in stone, employers are in position to choose. Employers are free to encourage their staff to receive the vaccine, and employers can also wait until a final determination has been issued. If you are an employer with questions on how these mandates apply to your organization, or would like to establish your own Covid-19 vaccine policies and procedures, please connect with an attorney at Fraser Trebilcock. Our team is well-versed in these issues and ready to assist as more information becomes available.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

Lauren D. Harrington is an associate attorney at Fraser Trebilcock focusing on Employment Law. You can reach her at 517.377.0874, or email her at lharrington@fraserlawfirm.com.

COVID Updates – Is My Workplace a “Public Indoor Setting” According to the CDC’s New Mask Guidelines?

If there is anything we’ve learned about COVID-19’s impact on businesses over the last 18 months, it’s that change is the only constant. Changes in economic conditions, variants of the virus, and shifts in workplace guidance from government agencies have all required business leaders to study the issues and best practices, and make the best decisions for their organizations.

With COVID numbers on the rise, reportedly due to the “Delta” variant, businesses are again confronted with making decisions about mask-wearing policies in the workplace. Masking is back at the forefront of discussion following July 27, 2021, revised guidance from the Centers for Disease Control and Prevention (“CDC”) recommending that even fully vaccinated individuals should resume wearing masks in “public indoor settings” in areas of the U.S. that have “substantial” or “high” COVID-19 transmission rates.

It was only a few months ago, in May, 2021, that we reported CDC guidance that fully vaccinated individuals could stop wearing masks and discontinue physical distancing in most settings, except in hospitals, on public transit or in other specified places.

What this Means for Businesses

It is important to note that the CDC’s new recommendation regarding mask-wearing is not a mandate. However, many businesses have chosen to base their COVID-19 workplace safety policies during the pandemic on the CDC’s guidance. Accordingly, for businesses that intend to follow the revised guidance, it’s important to understand the meaning of certain terms used therein in order to implement appropriate policies.

The revised guidance does not define the meaning of “public indoor settings” where it recommends masks be worn. However, the CDC has previously distinguished public settings from private household settings. Because the CDC’s guidance is not a mandate, businesses evaluating workplace policies should consider their particular circumstances, including issues such as the size of their workforce located within an indoor setting, local rates of transmission, and the percentage of workers vaccinated, among other factors.

The revised guidance does define the term “substantial or high transmission rates.” It refers to two metrics, considered separately:

the rate of new COVID-19 cases per 100,000 people; and,
the positivity rate.

Both CDC metrics are based on measurements looking back in time over the preceding seven days.

“Substantial” transmission is defined as 10-50 cases per 100,000 residents or a positivity rate between 5-8 percent.

“High” transmission is 100 or more cases per 100,000 or a positivity rate of 10 percent or higher.

The CDC has created a COVID-tracker map that can be viewed to determine transmission rates by county. In Michigan, as of August 11, 2021, a majority of counties have substantial or high transmission rates.

We recommend that businesses continue to monitor federal, state and local guidelines and/or mandates in order to evaluate and implement appropriate workplace safety policies. If you have any questions, or require assistance, please contact please contact Dave Houston or your Fraser Trebilcock attorney.

This alert serves as a general summary, and does not constitute legal guidance. All statements made in this article should be verified by counsel retained specifically for that purpose. Please contact us with any specific questions.

Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.

7th Circuit Rules in Favor of Indiana University’s COVID-19 Vaccine Requirement for Students

With the current increase of hospitalizations, the influx of the Delta variant in the United States and the low level of vaccinations in certain regions of the United States, universities and other higher education institutions are faced with a dilemma: Can these institutions make COVID-19 vaccinations mandatory for students?

It is an issue with complicated layers, and the evolving nature of COVID-19 doesn’t make it easy to arrive at a single consensus. Virginia Tech announced that it doesn’t believe it is legally authorized to require COVID-19 vaccinations for its students since the FDA has approved vaccines only for emergency use.

While Virginia Tech isn’t requiring vaccinations, according to the Chronicle of Higher Education, as of August 2021, at least 645 colleges are requiring students to receive the COVID-19 vaccination as a prerequisite to attend classes on campus. Other higher institutions have followed suit. University of Michigan, Michigan State University and Wayne State University all recently announced vaccine mandates.

Not surprisingly, vaccine mandates by universities have been challenged in the courts. And in a recent ruling, the U.S. Court of Appeals for the Seventh Circuit, in Klaassen v. Trustees of Indiana Univ., upheld Indiana University’s right to mandate vaccines for students returning to campus. The ruling denied a request for an injunction pending appeal of a federal district court’s ruling in favor of Indiana University.

The Seventh Circuit cited U.S. Supreme Court case Jacobsen v. Massachusetts as a precedent for its ruling. In Jacobsen, the Court held that a state may require all members of the public to be vaccinated for smallpox. Based on this ruling, the Seventh Circuit stated that there can’t be a constitutional issue with institutions requiring students to receive the COVID-19 vaccine.

The Jacobsen case didn’t allow for an exemption for adults, which is different from Indiana University’s policy on COVID-19 vaccines. The university allows exceptions for those students who declare vaccinations incompatible for religious beliefs and for those individuals for whom vaccines are medically contraindicated. Those exempt individuals are required to wear a mask and get tested. The Seventh Circuit did not view this as a constitutional problem.

The last distinction the Seventh Circuit made is that Indiana does not require every person in the state to be vaccinated, as was the case in Jacobsen. Those students who don’t want to comply with Indiana University’s vaccination requirement can simply attend an institution that doesn’t have this requirement. The court stated, “Each university may decide what is necessary to keep other students safe in a congregate setting. . . Vaccination protects not only the vaccinated persons but also those who come in contact with them, and at the university close contact is inevitable.”

In addition, since universities can already require surrendering property (i.e., payment of tuition) or requiring students to read or write about certain things (i.e., assignments by a professor), it was “hard to see a greater problem with medical conditions that help all students remain safe while learning.” The Seventh Circuit explained that it would be too difficult to learn if other students felt the spread of disease was imminent.

Indiana University can’t require students, faculty or staff to provide documentation that they received the vaccine since the attorney general of Indiana stated it would violate a new state law banning immunization passports. Instead, individuals would sign an attestation statement certifying they received the vaccine. Lying about vaccine status on this form may result in a punishment.

This case isn’t the final word on the issue. Plaintiff’s lawyer has indicated he plans to appeal the ruling to the Supreme Court. The landscape and terrain on requiring vaccines at higher institutions is subject to the evolving nature of COVID-19 and the responsibility of universities to offer the best learning environment and most importantly, a safe place for students.

If you have any questions about this recent ruling, or vaccine policy issues in higher education more generally, please contact Ryan Kauffman.

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters. You can contact him at rkauffman@fraserlawfirm.com or 517.377.0881.

COVID Updates — The Latest News for Employers

Despite hopes that the COVID-19 pandemic would be behind us by now, the emergence of the more transmissible Delta variant and consumer opposition to vaccination use are leading to resurgence of infections and infection rates. Those health events are, in turn, causing local, state and now the federal government, governmental agencies, and employers, to revisit, and, in some instances, reinstate, workplace health and safety policies. Just as COVID health risks have not disappeared, so, too, Employers who do not remain compliant with changing rules are, or may become, exposed to liability or penalty.

While cases in Michigan remain relatively low, and the state government has indicated that no changes in policies are imminent, it’s important for employers to stay on top of the latest COVID-related developments. If we’ve learned anything over the last 16 months, it’s that we need to expect (and prepare for) the unexpected.

Can an employer mandate that its employees be vaccinated?

In May, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) confirmed advice we had provided (see, EEOC Issues New Guidance on Workplace Vaccine Policies – FraserTrebilcock Blog (fraserlawfirm.com) that an employer mandate is allowed with respect to COVID vaccines allowed under Emergency Use Authorization (“EUA”) by the FDA, subject to the limitations discussed in the next section. The EUA-authorized vaccines are those manufactured by Pfizer, Moderna and Johnson & Johnson. Additionally, the Department of Justice released a Memorandum of Opinion on July 6 indicating that federal law “does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject” to an EUA.

Many employers have already announced vaccine mandates in both the public and private sectors. President Biden announced on July 29 that all federal workers must be vaccinated for COVID-19 or be subject to strict testing measures. Some state (e.g., California) and municipal (e.g., New York City) governments have imposed similar requirements for their employees. In the private sector, beginning primarily with healthcare providers, but increasingly in non-healthcare, employers including Google, Morgan Stanley, Goldman Sachs and others are also requiring that employees be vaccinated.

What exceptions must be allowed if vaccines are mandated?

Employers may mandate vaccines as long as they comply with the reasonable accommodation provisions of the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964, and other equal employment opportunity law considerations, including accommodations for medical or religious reasons. For more on the EEOC’s guidance regarding vaccines and reasonable accommodations, please reference our prior analysis of these issues.

Can employers ask their employees about their personal vaccination status?

Yes, but once that question is answered, employers should avoid inquiring about further medical information or history. We also covered this issue in our discussion of EEOC vaccine guidance . While federal guidelines require employers to provide a safe working condition, there is a risk that such a question, or any follow-up questions that relate to employee health, could be interpreted as a prohibited disability inquiry under ADA.

Can businesses ask their customers or clients about their personal vaccination status?

Neither state nor federal law restrict private businesses from asking for or requiring proof of vaccination to enter a store, office or other physical location of a business. Despite social media “memes” and misinformation recently circulating suggesting the opposite, inquiring about a customer’s vaccination status is not a HIPAA violation or a violation of constitutional rights.

Can employers require masks of employees while working onsite?

Generally, and subject again to worker disability law protections, employers have the legal right to require mask wearing onsite. There may be instances where a worker could refuse to wear a mask, such as if it negatively impacts job performance or safety, or he or she has a disability preventing mask use or a sincerely held religious belief. Employees who have a disability that interferes with their ability to wear a face mask may request a “reasonable accommodation” under ADA. Ford Motor Company recently announced that employees must start wearing masks again at plants in Missouri and Florida.

As cases continue to surge, more jurisdictions may begin mandating that employees wear masks. On July 27, the U.S. Centers for Disease Control and Prevention (“CDC”) issued guidance encouraging vaccinated individuals to begin wearing masks indoors in locations where COVID-19 transmission is “substantial” or “high.” The CDC’s announcement is expressly not a mandate, but intended to serve as guidance. Governor Whitmer indicated shortly after the CDC’s recommendation came out that Michigan would not be implementing a mask mandate at this time.

If you have any questions or concerns about your business’ COVID-19-related policies and procedures, please contact Dave Houston or your Fraser Trebilcock attorney.

EEOC Issues New Guidance on Workplace Vaccine Policies

On May 28, 2021, the Equal Employment Opportunity Commission (“EEOC”) issued new guidance for employers regarding employment vaccination programs. As discussed below, the EEOC’s updated guidance provides additional information concerning key issues such as whether:

Employers may mandate vaccines
An employee’s vaccination status is confidential medical information
Employers may offer vaccination incentives to employees

Employer-Mandated Vaccination and Reasonable Accommodations

Under the EEOC guidance, employers may require all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964, and other equal employment opportunity law considerations. The EEOC does not directly enforce state anti-discrimination laws, and this Guidance should not be interpreted as giving vaccination requirements a “pass” under Michigan civil rights and worker protection laws. Under federal law, “reasonable accommodations” for vaccine-sensitive or other “disabled” workers who cannot due to a disability be vaccinated, may include requiring unvaccinated employees to wear face masks and periodic testing for COVID-19.

The Guidance also explains that when implementing a vaccination policy, employers should be aware that, “because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.” Employers may not adopt vaccination policies that discriminate on the basis of a protected characteristic.

Voluntary Employer COVID-19 Vaccination Programs

The Guidance permits employers to adopt a voluntary COVID-19 vaccination policy as an alternative to a mandatory vaccination requirement. The ADA prohibits taking an adverse action against an employee for refusing to participate in a voluntary employer-administered vaccination program.

Vaccine Incentives

Employers may offer incentives for employees to receive vaccinations according to the EEOC. The EEOC requires that incentives offered by an employer not be “so substantial as to be coercive.”

However, the EEOC explained that federal equal employment opportunity laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party in the community, such as a pharmacy, personal health care provider, or public clinic.

Documentation of Vaccination Status

Under the Guidance, employers may request documentation of vaccination status but must keep vaccination information confidential, including ensuring that such information is kept separate from employees’ general personnel files.

EEOC guidance on COVID-19 vaccination issues for employers is complex and is likely to be further updated. In some cases, state and local requirements may differ from federal guidance. If you have questions about these issues, please contact Dave Houston or your Fraser Trebilcock attorney.

Can Employers Ask Their Employees if They Have Been Vaccinated?

One of the biggest challenges of the past year for employers has been keeping up with the complex and constantly evolving employment law issues that have arisen during the COVID-19 pandemic. The roll-out of COVID-19 vaccines has been a welcome relief for employers hoping to create safe and productive workplaces, but issues related to vaccines create a new set of questions.

One of the most common is whether employers can inquire about whether their employees have been vaccinated. Employers are wise to seek legal counsel regarding this issue, as any medical inquiry by an employer could give rise to legal risks. In this case, one of the main risks is that such an inquiry could be interpreted as a prohibited disability inquiry under the Americans with Disabilities Act (“ADA”).

As with most legal issues, this one is nuanced. The U.S. Equal Employment Opportunity Commission (“EEOC”) has issued guidance stating that a mere inquiry of vaccination status does not constitute a disability-related inquiry under the ADA. The EEOC explains that there are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Therefore, pursuant to the guidance, “simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.”

However, the guidance suggests that delving further into vaccination status may be problematic. For example, asking why an employee did not receive a vaccination may elicit information about a disability. Such follow-up questions could implicate the ADA and must be considered in light of the ADA’s framework that requires such inquiries to be “job-related and consistent with business necessity.”

The EEOC’s guidance on these issues is just that—guidance—and it is subject to change. As with any workplace policy, before establishing rules concerning vaccines, employers should consult legal counsel in order to understand their rights and responsibilities. If you have any questions about these issues, please contact Klint Kesto or your Fraser Trebilcock attorney.

Fraser Trebilcock attorney and former Michigan State Legislator Klint Kesto has nearly two decades of experience working in both the public and private sectors. You can reach him at kkesto@fraserlawfirm.com or 517.377.0868.

Can Higher Education Institutions Make COVID-19 Vaccinations Mandatory for Students?

On April 23, 2021, the University of Michigan announced that all students who choose to live on its Ann Arbor campus during the 2021 fall term will be required to be fully vaccinated for COVID-19. It’s not the first university to make such a pronouncement, and almost certainly will not be the last, which raises an interesting question: Can higher education institutions legally mandate vaccinations?

As with most complex legal issues, it is a nuanced one, and different schools have taken different stances. As of May 6, 2021, according to the Chronicle of Higher Education, 225 schools have made vaccinations mandatory. Others are leaving the decision to students. And Virginia Tech University announced that it does not believe that it has the legal authority to mandate that students be vaccinated.

While many higher education institutions have routinely required students to be vaccinated for viral diseases such as measles and mumps, the COVID-19 vaccines fall into a gray area. The difference—which is the issue cited by Virginia Tech in suggesting that it lacks authority for a mandate—is that the U.S. Food and Drug Administration has only allowed the emergency use of the COVID-19 vaccines and has not given them its full approval.

In some states, the vaccine decision is being directed by state governments. In states such Arizona, Idaho, Florida, Montana and Texas, governors have issued executive orders prohibiting government entities from requiring proof of COVID vaccination for access to buildings or services. However, the breadth and scope of such orders differs by state. Texas’ order, for example, is one of the broadest, in that it affects both public colleges and private colleges that receive state funding.

In Michigan, there is no similar executive order, but a Michigan House of Representatives version of a spending bill includes language prohibiting the state’s public universities from requiring COVID vaccines as a condition of enrollment or attendance.

It is also important to note that, even if a higher education institution mandates vaccinations, exemptions may apply. For instance, both public and private colleges and universities are subject to the requirements of the Americans with Disabilities Act (“ADA”). A student could potentially seek an accommodation from a requirement to take a vaccine on medical grounds, but a school’s obligations with respect to each such request—whether an accommodation is necessary and, if so, the extent of any such accommodation—must be evaluated on a case-by-case basis.

In short, this is a complex issue involving a number of considerations—from the legal and regulatory landscape to the political environment. That may explain why some higher education institutions, such as Wayne State University, have adopted a middle-ground position short of a mandate that involves offering students incentives for getting vaccinated. In April, Wayne State University announced that it would deposit $10 into the student account of any student who uploaded proof of vaccination by May 7.

If you have any questions regarding these issues, or require assistance in evaluating your institution’s COVID-19 vaccination program, please contact Ryan Kauffman.

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters. You can contact him at rkauffman@fraserlawfirm.com or 517.377.0881.