COVID vaccine regulation

On September 9, 2021, we explained that OSHA would be issuing an emergency rule requiring companies with 100 or more employees to require their workforce to be vaccinated or to undergo weekly testing. See OSHA to Issue Vaccine and Testing Mandates to Large Employers. And we also predicted that the rule would generate legal challenges.

As to both points, OSHA issued its rule on November 5, 2021. And on Saturday, November 6, 2021, a U.S. Court of Appeals for the Fifth Circuit in Louisiana temporarily blocked a new coronavirus vaccine requirement for certain businesses.

In issuing the ruling, the Fifth Circuit panel only offered the statement that it “believe[s] there are grave statutory and constitutional issues with the mandate.” While short on reasoning, the Order also directed the government to respond by 5 PM on Monday to the lawsuit’s request for a permanent injunction.

The ruling has no immediate effect on employers or individuals. This is because companies affected by it had until December 5 must require unvaccinated employees to wear a mask indoors. Next, companies would have until January 4 two require employees to be vaccinated or start weekly testing of employees who refuse to be vaccinated.

Going Deeper:

OSHA issued its regulation under the Occupational Safety and Health Act. In response, the lawsuit was filed by a group of businesses, religious groups, advocacy organizations in several states including Louisiana and Texas challenging OSHA’s use of this Act. The lawsuit argues the coronavirus vaccine mandate should be passed by Congress, not OSHA. So the core issue that the Court should ultimately focus on is whether OSHA exceeded its authority in issuing its vaccine requirement rule.

What does this mean for you: 

First, this ruling has nothing to do with a vaccine requirement a company decided to implement on its own initiative. Our office has fielded many inquires following this ruling from individuals interested in avoiding an employer’s vaccine requirement using the Fifth Circuit ruling.

Second, it is unclear whether this Temporary Restraining Order will be extended. An injunction is a very high bar to reach. And, as we previously noted, there are several facts for why an injunction should not be extended. Consider for example:

  • OSHA is permitted to issue temporary emergency standards to new hazards that pose a risk to employees.
  • The first COVID-19 emergency standard was issued by the Trump administration; and
  • OSHA has previously mandated vaccines in relation to hepatitis B.

In sum, while OSHA’s COVID-19 rule is expansive, it is not one without precedent, it originated from President Trump’s administration, and is now carried out by President Biden’s administration based on both precedent and actions by the prior administration. If OSHA’s regulation is delayed by the Fifth Circuit, the Biden Administration is signaling it will appeal the ruling to the U.S. Supreme Court. Whether a majority of the Justices will side with these facts or choose to clear another legal path is anyone’s guess.

Use this link to contact Michigan attorney Jason Shinn if you have questions about this article or complying with Michigan or federal employment laws. Since 2001, Mr. Shinn has represented companies and individuals concerning the issues discussed above and other employment matters under federal and Michigan employment laws. And since the coronavirus pandemic began, he’s helped many employers and employees navigate COVID-19 obligations and regulations with an honest, spin-free assessment.