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In-Depth: Confusion at all levels over COVID-19 vaccine mandates

COVID-19 vaccine
Posted at 11:55 AM, Nov 19, 2021

TAMPA, Fla. — One of the most contentious, and confusing, aspects of the COVID-19 pandemic has been the implementation of vaccine mandates. The mandates have been issued and later overturned at multiple levels of government at different times, which has only furthered confusion.

As you will read below, there are mandates, bans on mandates, and court challenges that all are playing into whether businesses and the federal government will be allowed to mandate COVID-19 vaccinations for workers.

FEDERAL COVID-19 VACCINE MANDATE

We start at the federal level. President Joe Biden’s administration issued a COVID-19 Vaccination and Testing Emergency Temporary Standard through the Occupational and Health Safety Administration (OSHA) on November 5.

The rule said that any business in the United States that had 100 or more employees must have the employees vaccinated or require weekly testing by January 4. It does provide exemptions for medical conditions, disabilities, or sincerely held religious beliefs. Based on OSHA’s structure, maximum fines could be fined up to $13,653 for a serious violation or $136,532 for a willful violation.

But as soon as the mandate was issued, multiple GOP-led states immediately filed lawsuits against the federal government seeking to stop the COVID-19 vaccine mandate from being enforced.

The states suing the federal government secured a temporary restraining order keeping the law from being enforced while the courts decide on the issue. The court granting the order halting the mandate, the 5th Circuit Court of Appeals, also expressed major concerns with the legality of such a mandate.

In other words, while a federal COVID-19 vaccine mandate is officially on the books, at press time, the rule is not enforceable based on the court’s decision. OSHA acknowledged this on its official website saying:

“The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

STATE LAW AND COVID-19 VACCINE MANDATES

Governor Ron DeSantis has been outspoken in his opposition to any vaccine mandates or mask mandates to help during the ongoing COVID-19 pandemic. He had tried, with varying degrees of success, to stop local school districts from enacting mask mandates even when transmission levels were elevated or high.

But, Thursday, after a very brief special session of the Florida Legislature, the state gave Governor DeSantis, and residents, new power to fight back against COVID-19 vaccine mandates as the ideological battle over the disease and how to fight it rages on.

According to the Governor’s office, multiple bills signed by Governor DeSantis now place limits or outright bans and steep fines on any businesses, government entities, or schools on COVID-19 vaccinations.

DeSantis’ office provided the following information about how the new laws passed by the legislature and signed into law this week will function:

  • Private Employer COVID-19 vaccine mandates are prohibited.
  • Employees can choose from numerous exemptions, including but not limited to, health or religious concerns; pregnancy or anticipated future pregnancy; and past recovery from COVID-19.
  • Employees can choose to opt for periodic testing or PPE as an exemption.
  • Employers must cover the costs of testing and PPE exemptions for employees.
  • Employers who violate these employee health protections will be fined.
  • Small businesses (99 employees or less) will face $10,000 per employee violation.
  • Medium and big businesses will face $50,000 per employee violation.
  • Government entities may not require COVID-19 vaccinations of anyone, including employees.
  • Educational institutions may not require students to be COVID-19 vaccinated.
  • School districts may not have school face mask policies.
  • School districts may not quarantine healthy students.
  • Students and parents may sue violating school districts and recover costs and attorney’s fees.

What hasn’t been established yet is how the new laws would impact states that do business in Florida but are not based in the Sunshine State. It’s possible the law may be challenged and face a lengthy court battle, like the federal COVID-19 vaccination mandate. But, as of press time, that’s the current law in Florida.

One area that wasn’t mentioned prominently in the state’s ban on vaccination mandates was the health care industry, specifically hospitals and other agencies that receive funding from the Center for Medicare and Medicaid Services. But that changed by the end of the day Thursday.

HEALTH CARE & HOSPITAL MANDATES

The Center for Medicare and Medicaid Services (CMS) issued COVID-19 vaccination rules at the same time as the overall federal rule was put in place. According to CMS, the new requirements apply to approximately 76,000 providers and cover over 17 million health care workers in the United States.

The CMS rule said that all facilities covered by the COVID-19 vaccination mandate must “establish a policy ensuring all eligible staff have received the first dose of a two-dose COVID-19 vaccine or a one-dose COVID-19 vaccine prior to providing any care, treatment, or other services by December 6, 2021.

It further stated that all eligible staff must have received the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna or one dose of Johnson & Johnson – by January 4, 2022. It also provided exemptions based on recognized medical conditions or religious beliefs, observances, or practices, similar to the overall federal vaccine mandate.

Florida Attorney General Ashley Moody sued the Department of Health and Human Services on November 17 seeking to halt the CMS vaccine mandate.

According to AG Moody, the CMS “lacks the authority to impose the mandate; did not consult with states before implementing the vaccine requirement; and failed to allow comment on the rule ahead of implementation.” Moody’s office also said the rules would hurt the medical industry struggling with staffing shortages as nearly every industry is currently.

WHERE DO THINGS STAND NOW?

All federal COVID-19 vaccine mandates have been challenged in federal courts by conservative-led states. Thus far, the courts have put a hold on the overall federal COVID-19 vaccine mandate. The CMS mandate is likely headed to a court hold while the legality is decided.

Florida’s COVID-19 vaccine bans are in place at the state level as described above.

For now, there are no COVID-19 vaccine mandates in place, except for the military and for the health care industry. But the latter has officially been challenged and is awaiting a court decision on a temporary injunction.

Until the courts officially rule on the legality of the mandates and all appeals are exhausted to the U.S. Supreme Court, federal COVID-19 vaccine mandates for most Americans remain halted.