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. This memorandum provides an overview of these actions and subsequent state responses.
Federal Mandates
Private Employer Mandate
On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS)1 mandating private employers with 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Alternatively, such employers could 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, 665.2 With this ruling, the Court held that OSHA could not enforce the ETS while litigation challenging the standard is ongoing. OSHA subsequently withdrew the ETS on January 25, 2022.3
Following this decision, large businesses nationwide were not required to mandate vaccines for employees, but states and individual businesses could enforce their own vaccine requirements.
Kansas Response
During the 2021 Special Session, legislation4 was enacted to require medical and religious exemptions be provided to employees whose employers require vaccinations. The law also allows 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.
Responses in Other States
As of October 2023, no state has mandated vaccinations for employees of private employers. Seventeen states had requirements for some or all state workers to receive the vaccine or undergo regular testing, but these requirements have since been rescinded. The District of Columbia continues to require District government employees, contractors, and interns to be fully vaccinated or undergo weekly testing; individuals may be exempted due to religious beliefs or medical conditions.
As of June 20235, 15 states do not allow government entities to require a COVID-19 vaccine to access public buildings or services and 11 states do not allow state entities to use vaccination status as a condition of employment. Eight states do not allow government entities to require residents to receive the COVID-19 vaccine. Twelve states have specifically prohibited the use of vaccine passports, with some states providing exceptions for their use in situations involving health care. Three states—Maine, Pennsylvania, and Rhode Island, and the District of Columbia—continue to require health care workers to receive the COVID-19 vaccine. California, Colorado, Illinois, New Jersey, and Oregon ended similar requirements earlier in 2022 or 2023, and Maine will end this requirement in 2024.
Federal Contractor Mandate
On September 9, 2021, President Biden issued Executive Order 140426, mandating COVID-19 vaccinations for all employees working for federal contractors and subcontractors.
In December 2021, the U.S. District Court of 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 (Georgia v. Biden, 574 F. Supp. 3D 1337 (S.D. Ga. 2021)) . 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) (Georgia v. President of the United States, 46 F.4th 1283 (11th Cir. 2022)).
Other courts issued separate injunctions for several states that blocked the enforcement of the mandate while litigation continued, and the Biden administration stated it would not enforce the mandate until further notice7.
On May 1, 2023, the Biden administration announced8 that it would be ending the COVID-19 vaccine requirements for federal employees, federal contractors, and international air travelers, effective at the end of the day on May 11, 2023, the same day the federal COVID-19 public health emergency declaration ended. The U.S. Department of Health and Human Services and the U.S. Department of Homeland Security also announced they would begin the process to end their vaccination requirements for Head Start educators, Centers for Medicare and Medicaid Services (CMS)-certified health care facilities, and certain non-citizens at the land border.
CMS Mandate
On November 4, 2021, CMS issued an emergency rule9 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 filed by a group of ten states (including Kansas) seeking to appeal the decision.
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.
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.
In January 2023, HR 49710, the Freedom for Health Care Workers Act, was passed by the U.S. House of Representatives in a 227-203 vote. The bill would have nullified the CMS rule requiring vaccines and would have banned the issuance of any substantially similar rule.
On August 5, 202311, CMS published a final rule that ended the requirements related to staff vaccination for all provider types.
Department of Defense Mandate
Secretary of Defense Lloyd Austin announced in August 202112 that all members of the Armed Forces under U.S. Department of Defense (DoD) authority on active duty or in the Ready Reserve, including the National Guard, must receive the COVID-19 vaccination.
Secretary Austin released a second memorandum in November 202113, which emphasized the requirement for the National Guard and Ready Reserve. DoD stated that National Guard members who did not show proof of vaccination and did not qualify for an authorized exemption would not be paid by the federal government when they were activated on federal status, including monthly drill weekends and the two-week annual training period. Each branch followed its own deadline for vaccine compliance, the last of which was June 2022, for National Guard members.
On December 23, 2022, President Biden signed the 2023 National Defense Authorization Act14 into law; among its provisions, the bill required Secretary Austin to rescind the vaccination mandate for members of the armed forces within 30 days.
On January 10, 202315, Secretary Austin rescinded the August 2021 memorandum mandating that members of the armed forces must be vaccinated against COVID-19 and the November 2021 memorandum pertaining to the vaccination of National Guard and Reserve personnel.
Service members who were involuntarily discharged because of their vaccination status may petition their board of corrections or request a waiver to apply for reinstatement. In May 2023, HR 345816 was introduced into Congress to streamline the reinstatement process, including upgrading previous vaccine-related discharges to “honorable,” providing bonuses that were withheld or recouped due to discharge, and expunging records of disciplinary language related to the COVID-19 vaccine. The bill has not yet received a hearing.
State Response
Governors in seven states formally asked Secretary Austin to not enforce the mandate for National Guard members, and Alaska, Oklahoma, and Texas filed lawsuits on behalf of their National Guard members. A number of individual service members also joined lawsuits based on the DoD’s refusal to grant requested religious exemptions.
In January 2022, a Texas judge ordered a temporary injunction against the punishment of a group of Navy SEALs who refused the COVID-19 vaccine and, in February 2022, a Florida federal district court judge issued a temporary order preventing disciplinary action against two officers who refused the vaccine on religious grounds. Both lawsuits were settled17 in October 2023 for a total of $1.8 million to cover legal fees incurred during the cases.
- https://www.osha.gov/laws-regs/federalregister/2021-11- ↩︎
- https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf ↩︎
- https://www.federalregister.gov/documents/2022/01/26/2022-01532/covid-19-vaccination-and-testing-emergency-temporary-standard ↩︎
- 2021 Special Session HB 2001, codified at KSA 44-663. ↩︎
- https://nashp.org/state-efforts-to-ban-or-enforce-covid-19-vaccine-mandates-and-passports/ ↩︎
- https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/ ↩︎
- https://www.nbcnews.com/politics/white-house/biden-administration-delay-enforcement-federal-worker-vaccine-mandate-until-next-n1284963 ↩︎
- https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/01/the-biden-administration-will-end-covid-19-vaccination-requirements-for-federal-employees-contractors-international-travelers-head-start-educators-and-cms-certified-facilities/ ↩︎
- https://www.federalregister.gov/documents/2021/11/05/2021-23831/medicare-and-medicaid-programs-omnibus-covid-19-health-care-staff-vaccination ↩︎
- https://www.congress.gov/bill/118th-congress/house-bill/497 ↩︎
- https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memos-states-and/revised-guidance-staff-vaccination-requirements ↩︎
- https://media.defense.gov/2021/Aug/25/2002838826/-1/-1/0/MEMORANDUM-FOR-MANDATORY-CORONAVIRUS-DISEASE-2019-VACCINATION-OF-DEPARTMENT-OF-DEFENSE-SERVICE-MEMBERS.PDF ↩︎
- https://media.defense.gov/2021/Nov/30/2002900918/-1/-1/1/MEMORANDUM-ON-CORONAVIRUS-DISEASE-2019-VACCINATION-FOR-MEMBERS-OF-THE-NATIONAL-GUARD-AND-THE-READY-RESERVE.PDF ↩︎
- https://www.congress.gov/bill/117th-congress/house-bill/7776/text ↩︎
- https://media.defense.gov/2023/Jan/10/2003143118/-1/-1/1/SECRETARY-OF-DEFENSE-MEMO-ON-RESCISSION-OF-CORONAVIRUS-DISEASE-2019-VACCINATION-REQUIREMENTS-FOR-MEMBERS-OF-THE-ARMED-FORCES.PDF ↩︎
- https://www.congress.gov/bill/118th-congress/house-bill/3458 ↩︎
- https://lc.org/PDFs/Attachments2PRsLAs/2023/100423DODSettlementAgreement(signed).pdf ↩︎
by Leighann Thone, PhD
Research Analyst
785-296-4181