November was a busy month for federal government agencies, courts, employers, and attorneys involved in the issue of mandatory COVID-19 vaccines for employees. At stake is a novel approach to increase COVID-19 vaccination rates put together by the Biden administration. Not surprisingly, the proposal spawned numerous lawsuits challenging it. A federal appeals court ruled it couldn’t go forward until further review and that the opponents of mandated workplace vaccinations were likely to prevail.

Wide-Ranging Workplace Safety Order Could Impact Employers With a Hundred or More Employees

The federal Occupational Safety and Health Administration (OSHA) issued on November 5 an Emergency Temporary Standard (ETS) involving employers with at least 100 employees. Under this order, employers would need to start a mandatory vaccine policy or weekly testing and a mask policy.

They’d also be required to provide paid time off to workers to receive the vaccine and recover from side effects. Unvaccinated employees would also need to wear a mask when in contact with coworkers. If an employer fails to comply, OSHA could issue a citation for $13,653 per violation and up to $136,532 if a violation is repeated or considered willful.

Federal Appeals Court Decision Prevents Rule from Going Into Effect

The rule technically took effect when it was published in the Federal Register, but a day later a decision by the US Court of Appeals for the Fifth Circuit prevented it from going forward. The many arguments against it in actions in federal courts across the country include:

• No federal statute authorizes the proposed actions explicitly and the executive branch is overstepping its authority through OSHA
• It violates the Commerce Clause of the 10^th Amendment to the US Constitution (which allows federal regulation of interstate commerce) because there’s no specific connection between COVID and interstate commerce
• Regulation of public health and safety powers are granted to the states
• At this point, with most of the U.S. population vaccinated, there’s no “grave danger” to justify this level of regulation
• The administrative and financial costs on employers are too high, as are the possible penalties

Three days after the Biden Administration announced the ETS, the Fifth Circuit (which covers appeals from federal courts in Mississippi, Louisiana, and Texas) issued an order staying the mandate pending further action. The court order stated there’s “cause to believe there are grave statutory and constitutional issues with the Mandate.” The Department of Labor was told to respond and those opposing could reply the next day.

Since the ETS is stayed and the order applies nationwide, employers need not comply. The court could lift the stay, then employers may need to act. Or maybe not. Because no matter how the appeals court finally rules, the outcome will be appealed by the losing side to the US Supreme Court and rule enforcement may be stayed until the Justices issue a final decision. Even if the ETS is eventually ruled valid, it may be months before it impacts workers.

Is Your Employer Unfairly Forcing You to be Vaccinated? Ignoring Your Disability-Related Concerns?

Contact our Kingston law offices with questions or concerns about your employer’s vaccination policy and how it may affect you. You may reach us through email (hisaacs@kingstonlawgroup.com), or by calling us at 609-683-7400.

We can schedule a reduced fee initial consultation. We can speak on the phone, through a Zoom teleconference, or in person if in fact you are vaccinated against Covid-19. We accept credit card payments and our appointments are generally from 9 a.m. to 5:30 p.m., from Monday to Friday. We can schedule evening appointments during the work week ahead of time.

We will listen to your facts, explain the law, and outline your best avenues to achieve social and economic justice. Contact us today. You’ll be glad you did.