What Is The Latest On Federal, State And Local Vaccine Mandates?
While legal challenges continue, the U.S. Senate passed a nonbinding resolution last week that would roll back the Occupational Safety and Health Administration’s (OSHA) vaccine and testing mandate for employers with 100 or more employers. Sens. Jon Tester (D-Mont.) and Joe Manchin (D-W.Va.) joined with Republicans to support the measure.
It is unclear whether leaders in the U.S. House of Representatives will schedule a vote on the measure, but even if the House were to approve the resolution, President Joe Biden would veto it. That means the vote was largely symbolic and will have no impact on whether OSHA eventually moves forward with implementation of the mandate — and it certainly will have no impact on how the courts handle legal challenges.
As Connecting the Dots readers are aware, a legal judgement, or stay, issued last month has said OSHA cannot implement its mandate, and the Sixth Circuit Court of Appeals out of Ohio plans to hear the case challenging the vaccine mandate. (Nearly 40 cases have been consolidated into one at this venue.) Last week, that court denied OSHA’s request to expedite the briefing on its motion to lift the current stay, which means OSHA implementation of the mandate should still be on hold throughout the country. As Connecting the Dots has reported, it is unclear how the court will rule in this case, and it is likely that a ruling will be challenged in the Supreme Court.
It also is possible that, while the legal process moves forward, OSHA could decide to reinstate its plan to move ahead with implementation and enforcement of the regulation. The agency currently is not taking that course, however.
While observers are still waiting for lawsuits to the OSHA rule to be heard, last week a federal judge in Georgia temporarily stayed President Biden’s vaccine mandate for federal contractors, ruling that the president likely exceeded his constitutional and statutory authority in issuing the mandate. The stay was nationwide, which effectively freezes the federal contractor mandate across the country. Venable LLP has more information on this matter here.
In the absence of a federal vaccine mandate, some states and cities are moving forward with mandates of their own. Last week, for example, outgoing New York City Mayor Bill de Blasio announced a vaccine mandate for private employers in his city. Effective December 27, 2021, private employers must require all employees to be fully vaccinated. The mandate does not apply to fully remote employees or employees who are alone in the workplace.
Other state leaders are skeptical of the federal mandate, however, including those in President Biden’s own party. Gov. Gretchen Whitmer (D-Mich.) reportedly told business leaders that OSHA’s coronavirus vaccine mandate was “a problem for all of us.” Gov. Whitmer also said, “We’re an employer too, the state of Michigan is. I know if that mandate happens, we’re going to lose state employees. That’s why I haven’t proposed a mandate at the state level. Some states have. We have not, we’re waiting to see what happens in court.”
As always, stay tuned to Connecting the Dots for information on this rapidly-changing issue.