Anti-mandate advocates were successful in federal court over the weekend. On Saturday, a Federal appeals court in Louisiana temporarily blocked the Biden administration’s federal 100 or more employee private business vaccine mandate. A three-judge panel from the Fifth Circuit granted an emergency stay after several states filed a petition on Friday seeking a permanent injunction. The Fifth Circuit stated it was delaying the federal vaccine requirement because of potential "grave statutory and constitutional issues" raised by the plaintiffs. The government must provide an expedited reply to the motion for a permanent injunction by 5 p.m. Monday.
Despite the ruling, the Biden administration is confident that the mandate will withstand legal challenges because the mandate pre-empts state laws. The U.S. Surgeon General, Vivek Murthy, defended the mandates by referencing the historical use of vaccine mandates stating “Throughout our history, we have seen that we have used vaccine requirements to protect the population. It started back with George Washington, in fact, when he required troops be inoculated for smallpox.”
Prior to the stay, the rule establishing the vaccine mandate was filed in the Office of the Federal Register on November 4, 2021, and it became effective when it was published on November 5, 2021. The mandate, a rule of the Occupational Safety and Health Administration (OSHA) and the Department of Labor, requires employees of private sector companies with 100 or more employees to be vaccinated against COVID-19 by January 4, 2022. All employees must receive the necessary shots to be fully vaccinated – either two doses of Pfizer or Moderna or one dose of Johnson & Johnson – by the deadline.
If employees are not vaccinated by the January deadline, employers must ensure that unvaccinated employees produce a weekly verified negative COVID-19 test. Furthermore, under the mandate employers must ensure all unvaccinated employees are masked and pay employees for time off to get vaccinated. If an employee tests positive for COVID-19, the employer must remove that individual from the workplace. Non-compliance with the mandate is prohibitive as the rule calls for a penalty of nearly $14,000 per violation. The removal of unvaccinated employees could have immediate negative consequences for the economy, as private sector businesses with 100 or more employees, is about two-thirds of the county’s workforce.
Mirroring OSHA's requirements, the Centers for Medicare and Medicaid Services (CMS) uses the same January 4th deadline for health care workers at Medicare and Medicaid participating facilities. This CMS mandate applies to more than 17 million workers in the health care industry, including those working in hospitals and long-term care facilities. Failure to comply with the mandate would result in losing Medicare and Medicaid funding.
The mandate has triggered several anti-mandate protests across the country. In addition to the protests, several states have sued in Federal court seeking to strike down the mandates as unconstitutional. The primary argument of those opposing the mandates is that the rules are an overstep of the Federal government’s authority and a violation of established constitutional principles. The lawsuits resulted in the temporary stay granted by the Fifth Circuit.
Despite a temporary stay, the mandate is technically still active, and its ultimate fate has yet to be decided. There is a distinct possibility that additional states, political interest groups, and individuals will file lawsuits to obtain a permanent injunction against the vaccine mandate. Furthermore, it is likely that the decision by the Fifth Circuit will be appealed by OSHA. The ensuing legal battle may take months and could exceed the January deadline. Regardless of what may happen, business owners must be prepared to pivot with respect to compliance with any covid-related rules, mandates, or other legislation.
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