That rule, administered through the Labor Department’s Occupational Safety and Health Administration, would require employers with at least 100 workers to mandate full vaccination of their employees by Jan. 4 or else require them to mask and get tested for the virus weekly.
Employment lawyers say the ruling from the U.S. Court of Appeals for the Fifth Circuit raises questions about whether the matter will be settled before looming deadlines, which employers and unvaccinated workers will be impacted by the decisions, and what, if any, federally imposed mandate will ultimately remain in place.
While there’s no guarantee challenges will be resolved before Dec. 5 when employers are instructed to have vaccination policies in place, lawyers say the cases are likely to get expedited treatment. Still, the White House said employers shouldn’t wait until the litigation is settled before enacting them.
For his part, labor and employment attorney Mark Kluger advises clients to comply with the mandate and to inform employees what’s required in the event the rule is upheld. That way, workers who choose to get vaccinated can do so in time to comply with the deadline.
“We’re going to need to inform unvaccinated employees that if they want to avoid weekly COVID-19 testing, they’re going to have to start their series of vaccines,” Kluger said, referring to a scenario where the rule is upheld.
Among immunizations currently available in the U.S., Kluger points out that those with two-shot regimes take longer to complete, and that a first dose could therefore need to happen as soon as Nov. 23.
The law firm Fisher Phillips issued an advisory over the weekend telling employers to prepare to comply with OSHA’s rule, which is being administered as an Emergency Temporary Standard, or ETS.
“After all, OSHA will most likely have little patience with non-compliant employers who claim they held off implementing the mandate-or-test rule while awaiting a final court ruling — and the agency has significant weapons at its disposal in the form of citations and penalties for those not following the ETS edicts,” the firm warned.
Employer penalties for noncompliance with OSHA’s rule could include fines based on the number of violations and range up to approximately $13,653 for a single violation, senior White House officials said. Fines are significantly higher, up to $136,532, for employers who willfully violate standards.
A legal battle likely headed to the Supreme Court
The Biden mandate, unveiled last week, already faces a number of legal challenges, including from at least 26 states, arguing that the administration overstepped its authority in violation of states’ rights. The temporary injunction blocking the rule from the Fifth Circuit is a major hurdle for the administration, according to King & Spalding employment lawyer Amanda Sonneborn.
Sonneborn said the court had yet to make clear how far it intended its order to extend outside its jurisdiction, which includes Louisiana, Mississippi, and Texas. She and others say it’s possible the court intended national application and to expect pushback from government lawyers if the court decides to put a permanent ban in place.
“The government must now reply to [the] plaintiffs’ motion for a permanent injunction as American companies continue to wrestle with their own vaccine and mandate policies,” Sonneborn told Yahoo Finance on Monday.
In that reply filed late Monday, the government argued that it had the authority to issue the emergency temporary standard, and that doing so would “save thousands of lives and prevent hundreds of thousands of hospitalizations.”
Still, Seyfarth Shaw labor and employment lawyer Scott Hecker says that OSHA has some hurdles to clear before its emergency temporary standard is deemed legally sound. Those hurdles include identifying a “grave danger” to employees that still exists, and showing the rule is necessary to protect all employees in companies with 100 or more employees, in all sectors, from that danger.
“Congress set a high bar, and the breadth of the emergency temporary standard, as well as the Biden administration’s trumpeting its successes in battling COVID without the emergency temporary standard, both undercut the necessity argument,” Hecker said.
In addition, he said, the administration will need to address the past administration’s determination that a rule was not necessary because OSHA has other enforcement tools available.
Regardless of the Fifth Circuit’s ultimate ruling, the vaccine mandate will almost certainly end up in the Supreme Court before the coronavirus pandemic ends.
“For a lot of us, it’s a question of when rather than whether the Supreme Court will get involved with what they think is the right kind of case,” Northwestern University Law School professor Daniel Rodriguez previously told Yahoo Finance.
Author: Alexis Keenan