Federal Vax-or-Test Mandate for Large Employers Reinstated

Judges of the U.S. Sixth Circuit Court of Appeals decided, 2-1, to allow the Biden administration's vax-or-test mandate for private sector employers, removing a stay placed on the OSHA rule by the Fifth Circuit. Enforcement begins Feb. 9.

December 22, 2021, 10:00 AM PST

By Irvin Dawid

A sign on a door says proof of vaccine is required to enter.

rblmfr / Shutterstock

With the new Omicron variant threatening a "'viral blizzard' in coming weeks," the Biden administration received very welcome news from the Cincinnati-based federal appeals court last Friday after two of the three justices on a panel voted to lift the judicial stay on the rule issued by the Occupational Safety and Health Administration (OSHA) that applies to employers of 100+ people.

"OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard," states the 'litigation update' on the rule's webpage.

OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

Three of the four requirements for large employers noted in their press release issued on Nov. 4  include:

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination status from vaccinated employees and maintain records and a roster of each employee's vaccination status.
  • Ensure each worker who is not fully vaccinated is tested for COVID-19 at least weekly (if the worker is in the workplace at least once a week) or within 7 days before returning to work (if the worker is away from the workplace for a week or longer).
  • Ensure that, in most circumstances, each employee who has not been fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

[Update: The Supreme Court agreed to hear appeals to the large employer rule and the healthcare worker vaccine mandate on Jan. 7, 2022, reports The New York Times on Dec. 22.]

Omicron influenced the split decision

The Omicron variant, which can outcompete the highly transmissible Delta variant and accounts for 73% of infections in the United States as of Dec. 20, was noted in the 57-page decision [pdf], reported Lauren HirschEmma Goldberg, and Charlie Savage for The New York Times on Dec. 17 (source article).

“OSHA has demonstrated the pervasive danger that Covid-19 poses to workers — unvaccinated workers in particular — in their workplaces,” Judge Jane B. Stranch wrote, adding that the possibility of new variants cited by the agency when it issued the rule “has borne out with the Omicron variant.”

Judge Stranch, an Obama appointee, was joined by Judge Julia Smith Gibbons, who was appointed by President George W. Bush.

But Judge Joan L. Larsen, a Trump appointee, dissented, arguing — as had the Fifth Circuit panel before her — that the agency had exceeded its legal authority.

Partial enforcement begins on Jan. 10

Hirsch and Goldberg, reporting separately on Dec. 18, write that the U.S. Department of Labor, which enforces OSHA rules, will delay full enforcement of the emergency temporary standard.

The Labor Department said in a statement on Saturday that it would “not issue citations for noncompliance” with any requirements of the rule before Jan. 10.

It said it would not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

Appeal to Supreme Court

"Several of the many plaintiffs who have challenged that rule immediately asked the Supreme Court to intervene as part of its 'emergency' docket," add Hirsch and Goldberg. They include links to emergency applications filed by Ohio Attorney General Dave Yost [pdf], organizations represented by the Alliance Defending Freedom [pdf], and a group of 26 business associations [pdf] to stay the appeals court ruling.

Appeals from the Sixth Circuit are assigned to be reviewed by Justice Brett Kavanaugh, who under Supreme Court rules can, in theory, make a decision on his own but is more likely to refer the matter to the full Supreme Court for consideration.

"If upheld, the vaccine mandate will fundamentally change the relationship between employer and employee by forcing employers to compel and regulate the personal medical decisions of their employees," notes the press release by the Heritage Foundation accompanying its application [pdf] on Dec. 19.

According to Bloomberg Law, the Supreme Court "likely won’t decide until January whether to halt the...rule for large employers, leaving companies in limbo as they prepare to comply with the measure amid the spread of the highly contagious omicron variant."

Changing scorecard

With the win on Dec. 17, the coronavirus vaccination scorecard for the three requirements in the "Vaccinating the Unvaccinated" prong of the White House's Path Out of the Pandemic changes significantly.

  • Requiring All Employers with 100+ Employees to Ensure their Workers are Vaccinated or Tested Weekly
  • Requiring Vaccinations for all Federal Workers and for Millions of Contractors that Do Business with the Federal Government
  • Requiring COVID-⁠19 Vaccinations for Over 17 Million Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings

See the scorecard, which shows "two wins and five losses as of Nov. 30," at the base of:

Additional related posts on OSHA  and Cal/OSHA rules in Planetizen:

Friday, December 17, 2021 in The New York Times

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