On Saturday, November 6, the Fifth Circuit Court of Appeals issued an Order staying implementation of the OSHA emergency rule mandating vaccinations for employees of employers with 100 or more employees. That mandate is scheduled to take effect January 4, 2022.
The Order was only a brief per curiam statement, not a full opinion, but did include the following suggestive language: “Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.”
The comment about grave statutory and constitutional issues suggests the Fifth Circuit is not in sympathy with the mandate.
The OSHA Mandate and the Appellate Process
If the appeals court rules against the mandate and the matter is presented to the Supreme Court it’s difficult to predict the outcome. Despite its conservative majority, however, the Court has proved to be sympathetic to vaccine mandates. For example, in August Justice Barrett refused to grant emergency relief to a group of University of Indiana students who sought to overturn the school’s mandatory vaccination policy. In that case, the Seventh Circuit Court of Appeals strongly supported the University’s vaccine mandate.
In early October, Justice Sotomayor, who handles emergency appeals from the area that includes New York, turned down a request to temporarily block the enforcement of New York City’s public employee vaccination mandate. And on October 29, the Supreme Court refused injunctive relief to healthcare employees who opposed a vaccination mandate in the state of Maine.
This history obviously doesn’t mean the Supreme Court would necessarily rule in favor of the OSHA mandate if the issue is fully presented. But it gives proponents of the mandate some reason for optimism.
Scope of the OSHA Emergency Temporary Standard
The OSHA Emergency Temporary Standard (“mandate”) requires employers with at least 100 employees, full and part time, to implement a mandatory vaccination policy. Such a policy must require vaccination of all employees, unless they are eligible for either an Americans with Disabilities Act accommodation, or a religious accommodation.
Employers must require employees to show proof of vaccination. If necessary, employers must give up to 4 hours paid time off to get vaccinated, and provide reasonable sick leave for employees to recover from any side effects. By December 5, employees who are not vaccinated must wear a mask indoors or in a vehicle with a co-worker riding on company business. By January 4, 2022, employees must be fully vaccinated. Workers will have until that date to receive the final dose of the vaccine — either the one-time Johnson & Johnson vaccine or the second shot of a Moderna or Pfizer vaccine — in order to be in compliance with the ruling.
Employees not fully vaccinated by January 4th must be subject to weekly Covid testing.
