U.S. COVID Vaccine Mandate In Legal Limbo

The Occupational Safety and Health Administration (OSHA) has suspended implementation and enforcement of the federal COVID-19 vaccine mandate for businesses with 100 or more employees, but the Biden administration has continued to defend the regulation in court and in the media.

Before the Thanksgiving holiday, the Biden administration asked the U.S. Court of Appeals for the 6th Circuit to immediately reinstate the OSHA COVID-19 vaccine mandate for employers, arguing the rule reflects “the grievous harms the virus inflicts on workers. The Biden administration estimated the mandate, if implemented, could save more than 6,500 employees’ lives over the next six months, and keep 250,000 people out of the hospital. (Read the Biden administration’s court filing here.) The Biden administration also has asked for an expedited briefing schedule on both the motion to lift the stay and on the underlying merits of the case.

The parties challenging the OSHA mandate have until December 7, 2021 to respond to the Biden administration’s request and arguments. Those groups asked the court to follow a slower schedule, with briefing pushed into 2022.

It is more likely that the court of appeals will move relatively quickly to hear and rule on the case, however. It also is likely that the Supreme Court ultimately will have to decide the legality of the mandate. While the legal process moves forward, OSHA could decide to reinstate its plan to move ahead with implementation and enforcement of the regulation, but, as noted above, currently it is not taking that course.

It is impossible to predict how courts will rule on this matter. Deadlines to comply could hold, get pushed, or be struck down altogether. To help employers prepare for any outcome, OSHA has provided compliance materials at this website.

While it waits for the next legal ruling, OSHA also has extended the comment period for the rule. The public now has until January 19, 2022 to comment. Organizations and individuals that are interested in submitting letter to OSHA can find more information about how to do so here.

As Politico has explained, the U.S. Department of Labor is only authorized to issue emergency standards like the vaccine rule if it determines “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and that the rule is “necessary” to protect workers from that danger. Organizations and state officials that have challenged the rule have argued that COVID-19 no longer presents a new hazard or a “grave danger” to workers.

Federal courts around the country have continued to issue rulings against various Biden administration mandates, however. In just the last week:

• Judge Terry Doughty of the U.S. District Court of the Western District of Louisiana issued a preliminary injunction against a Centers for Medicare and Medicaid Services regulation calling for vaccination of health care workers. The judge said the ruling was needed to safeguard the separation of powers.
• U.S. District Judge Gregory Van Tatenhove issued a similar ruling in Frankfort, Ky. that temporarily prevents the enforcement of the federal government’s vaccine mandate for government contractors. That rule now cannot be implemented in Kentucky, Ohio, and Tennessee.

Stay tuned to Connecting the Dots for the latest information on these lawsuits and on implementation of the vaccine mandate.