E-Alert: Supreme Court Clarifies Vaccine Mandates: Where Arkansas Employers Stand Today

Yesterday, the Supreme Court of the United States issued its long-anticipated order on the OSHA Emergency Temporary Standard (ETS) and Centers for Medicare and Medicaid Services (CMS) vaccine rules.

Most notably, the Order stayed the OSHA ETS vaccine mandate by finding that OSHA likely exceeded its authority in issuing the ETS. The Court specifically found that OSHA did not have the authority to impose the ETS because the law that created OSHA “empowers the Secretary to set workplace safety standards, not broad public health measures.” The Court sent the case back to the Sixth Circuit Court of Appeals for a ruling on the merits, yet in all likelihood this signals the end of the OSHA ETS. This means that an employer is not required to comply with the OSHA ETS pending further adjudication in the court system.

However, in a separate ruling, the Court confirmed that CMS has the authority to require health care employees at facilities that receive Medicare and Medicaid funding to get the COVID-19 vaccination, unless the employee receives a religious or medical exemption. The Court lifted the injunctions that had been issued against the CMS vaccine rule, including the ruling affecting Arkansas. This means that covered health care providers in Arkansas (and others doing business with them) will now need to establish and implement plans and procedures to ensure their employees are vaccinated. By January 27, 2022, all employees covered under the CMS rule must receive their first dose of the COVID-19 vaccine, unless the employees have a pending exemption or have an approved temporary extension under CDC guidelines. By February 28, 2022, covered facilities must ensure that all their covered employees are fully vaccinated, except those who have approved exemptions.

Neither of these rulings affect the federal contractor, federal employee, and Head Start vaccine mandates, all of which remain stayed in Arkansas.

Additionally, beginning today, the new Arkansas statute that requires alternative testing options for employees subject to a mandatory vaccine policy becomes effective. Arkansas Act 1115 requires employers who mandate employees to be vaccinated against COVID-19 to allow employees to opt out for any reason. The law allows people to show proof to their employers of a negative COVID-19 test weekly or proof that they have antibodies to fight COVID-19. This Arkansas law is preempted by any federal vaccine mandates, so businesses covered by the CMS or other federal contractor rules are not required to comply. However, if you have implemented a mandatory vaccine policy to date, and you are not covered by any federal vaccine mandate, then you must offer the alternative testing/proof of natural immunity options to all new hires or future booster mandates or face penalties under Arkansas law.

If you need help developing a CMS-compliant or other COVID-19 vaccine policy, please contact an Attorney with our Firm at 501-371-9999 or by email (info@cgwg.com).