The Biden administration’s vaccine mandate for companies with 100+ employees hit its first court roadblock this past weekend portending an uphill legal battle for its implementation. Following the November 6 federal court stay of the administration’s rule, the Department of Justice (DOJ) yesterday requested that all legal challenges be consolidated into a single federal circuit court. DOJ also asked that by November 16 one circuit court be chosen at random to hear the cases. Under federal rules, similar cases filed in multiple circuit courts can be consolidated and heard by one court—chosen by lottery.
Broadly speaking, the new rules would mandate that companies with 100+ employees require employees to show their vaccination cards, or a weekly negative COVID-19 test, by January 4. All unvaccinated employees would be required to wear masks indoors beginning December 5.
The legal challenges to the Occupational Safety and Health Administration’s (OSHA) rules come as no surprise. As we previously wrote, OSHA’s legal authority to issue expedited rules under an “emergency temporary standard” (ETS) have often been challenged in the court with success. After OSHA made the rules public, dozens of lawsuits in multiple federal circuit courts were filed by at least 27 Republican-led states, numerous businesses, and industry associations. On November 6, citing “grave statutory and constitutional issues,” the U.S. Court of Appeals for the Fifth Circuit in New Orleans suspended the rule pending further litigation. The ruling came one day after OSHA formally published the new rules in the Federal Register outlining the vaccine mandate requirements for large companies.
As of the writing of this note, it remains unclear whether the court’s stay of the OSHA rule applies beyond the states that filed in the Fifth Circuit (Louisiana, Mississippi, South Carolina, Texas, and Utah). Petitioners filing legal challenges in the Eighth Circuit have requested clarification on whether the ruling applies nationwide.
Battle lines are being drawn mostly along party lines with Republicans asserting that Biden’s vaccine mandate steps on individual rights and freedom and others questioning whether COVID-19 is a “grave” threat in the workforce that makes the ETS standard applicable. It is notable that the ruling against the administration’s mandate comes from the New Orleans-based Fifth Circuit—one of the most conservative panels—composed of two judges appointed by the Trump administration and one by the Reagan administration. Moreover, last week, more than forty Republican senators indicated that they would pursue a joint resolution of disapproval to roll-back the rules, though in a Democrat-controlled House and Senate it is unlikely to go anywhere.
As the rule for large companies works its way through the legal process, we note one industry reaction regarding the vaccine mandate. Last week, the American Truckers Association referred to the mandate as a win, having previously issued dire warnings that the trucking workforce would be reduced by 37% should it go into effect. The mandate appears to provide a carveout for truckers without explicitly doing so. The rules offer an exemption for employees who work alone or exclusively outside with minimal contact with others indoors.
Separately, with regards to federal contractors, the administration clearly considered supply chain and labor shortage fears ahead of the holiday season. On the day it issued the OSHA rules, it postponed the December 8 deadline for federal contractors to be vaccinated to align with the January 4 deadline for large businesses, though federal contractors would not be given the option for weekly testing. However, last week the administration formalized its more relaxed enforcement rules for federal contractors providing flexibility in its applicability and counseling for unvaccinated employees before termination of their employment.
