Biden Administration’s vaccine mandates largely halted for now; companies taking a wait-and-see approach

December 5, 2021

The three different mandates from the federal government requiring COVID vaccinations for employees are in flux with legal challenges.

Most private companies are now taking a wait-and-see approach about implementing the federal mandates, one of which requires businesses with 100 or more workers to have workers get a COVID vaccination by Jan. 4 or submit to weekly testing.

Enforcement of the mandates likely will not occur, if at all, until sometime in 2022, and employers should have time to prepare if the stay is removed.

The reason: federal courts have temporarily stopped the implementation of all three directives.

While the federal Occupational Safety and Health Administration remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the emergency temporary standard pending future developments in the litigation.

This ruling is significant for employers who were left wondering if they were going to be required to start enforcing the masking and other provisions in early December to meet the Jan. 4 deadline. That 490-page mandate also set forth rigid record-keeping requirements and stiff financial penalties for violations.

The U.S. Court of Appeals for the 5th Circuit was the first to issue a stay pending litigation on the merits of the lawsuit. To avoid having courts litigate the same issue individually, the cases were consolidated for review by Court of Appeals for the 6th Circuit.

OSHA filed an emergency motion to dissolve the 5th Circuit’s stay. The 6th Circuit has set a briefing schedule in December. It is likely that the 6th Circuit will make consistent rulings and uphold the stay.

Either way, the arguments are expected to be heard by the U.S. Supreme Court.

Another emergency temporary standard issued by OSHA for the health care industry also hit an unexpected snag on Nov. 29 when a federal judge in St. Louis blocked enforcement of the mandate for the 10 states that sued claiming that OSHA exceeded its authority in issuing the mandate. The next day, a federal court in Louisiana expanded the injunction nationwide.

The mandate requires about 10.3 million health care workers to get vaccinated with one dose by Dec. 6, and a second dose by Jan. 4, with no alternative testing option. According to the 34-page ruling, 2.4 million health care workers remained unvaccinated.

The judge in the Louisiana federal court ruled the government lacked the authority to implement the mandate, and that the government grossly understated the health care impact due to the number of employees that would be terminated as a result of non-compliance.

The third mandate issued by the Biden administration in September required federal contractors working on federal contracts to be fully vaccinated on or before Jan. 18, (a date that has changed since first issued). Employers can provide reasonable accommodations for religion or disability, but there is no testing option.

That executive order hit a snag on Nov. 30 when the Kentucky attorney general won a preliminary court order to block the mandate’s enforcement in a lawsuit filed by Kentucky, Ohio, and Tennessee.

While the current injunction is not nationwide, the federal contractor mandate also might be hanging on a thread.

The mandate already had been in questionable status. The Biden administration issued new guidance in November that contractors could be flexible with the deadlines, likely due to unexpectedly large numbers of employees refusing to get vaccinated.

At this time about 59% of Americans are fully vaccinated, and most employers are under no government mandate to require vaccinations or testing of their employees.

Employers should evaluate their own needs and priorities before putting in place mandates that may divide workplaces and create more turnover and workplace dissatisfaction.

As the holidays approach, employers also should continue to encourage vaccinations and give time off for workers to get vaccinated and recovery, including for boosters. Most employers have successfully and safely navigated the pandemic in the workplace and should continue the same strategies going forward.