• Jackson Shields Yeiser

UPDATED* Employer Challenges in Enforcing the President’s COVID-19 Vaccine Mandates

By Paula Jackson

Oct. 25, 2021 (Updated Nov. 15, 2021)

President Biden recently ordered federal employees and contractors to undergo mandatory COVID-19 vaccinations by November 22, 2021 (extended to January 4, 2022) and called for OSHA to require the same type of mandate for certain employers unless the law requires a religious or medical accommodation.[1] Under OSHA’s mandate, which was effective on November 5, 2021, certain employers with at least one hundred employees must implement a written policy requiring mandatory COVID-19 vaccination or an alternative of masking and weekly testing by December 5, 2021.[2] OSHA’s mandate also requires, among other things, employers to monitor employees’ vaccine and/or testing status by checking certain documentation; compensate employees for certain time spent getting vaccinated and recovering from side effects; ignore collective bargaining agreements and state laws that conflict with OSHA’s mandate; force employees to report any COVID-19 diagnosis (or positive test result) so employers can quickly isolate them from the workplace; report information to the government; and share certain information with employees.

Lawsuits already seek to challenge both mandates. For example, federal employees, contractors, and service members sued, claiming that the federal mandate violates their constitutional rights to free exercise of religion (i.e., since the vaccines are linked to aborted cell lines), refuse medical treatment, and reject the available emergency vaccines that are not yet FDA-approved.[3] In addition, some states have also filed lawsuits alleging that the mandates not only violate the Equal Protection Clause by forcing citizens but not illegal aliens to get vaccinated but also infringe upon states’ police powers, the Constitution’s separation of powers, and the federal Procurement Act by requiring federal contractors to get vaccinated.[4]

Shortly after OSHA’s mandate, businesses and states filed appeals in eleven federal courts, and one court quickly halted the mandate temporarily due to “grave statutory and constitutional issues.” However, those appeals will likely be consolidated into one while awaiting a more permanent ruling.[5] In addition, employees have previously challenged similar COVID vaccine mandates as violating their rights to reject medical procedures/testing and to enjoy privacy, liberty, religious freedom, and equal protection.[6] Other arguments against this mandate, which can only be issued to protect employees in “grave danger,” include declining infection rates; a 99.5-99.8% survival rate; natural immunity; the failure of the purported “vaccines” to produce true immunity or prevent transmission of COVID; preventative steps employers have taken to reduce risks (such as masking and social distancing); and the potential risk of harm or side effects from the vaccines (or tests) themselves, including blood clots, heart problems, allergic reactions, potential problems for persons with antibodies, and other potential unknown effects since the only vaccines available have not gone through the entire FDA testing and approval process.[7]

Other impediments may also threaten the smooth enforcement of these mandates. First, some states have partially or fully blocked COVID vaccine mandates and/or passports. Tennessee, for example, has banned the state, local governments, and most private businesses from requiring vaccines or passports.[8] Second, employers may appeal OSHA’s mandate (as some have already done), request a variance, or petition to reverse or modify it.[9] When appealing the mandate, employers may attempt to prove not only that OSHA lacked the authority to issue such a mandate but that the mandate itself will not be as feasible or cost-effective to implement as OSHA suggested, especially since forced vaccinations may expose employers to liability at a time when no FDA-approved vaccine is available, and vaccine long-term side effects are unknown.[10] Tennessee’s COVID Shield Law does not protect employers from liability for vaccine-related injuries but only from COVID itself.[11]

If the mandates are enforceable, employers may face many challenges and even potential lawsuits in trying to implement them. For example, some of the employees who filed the lawsuits mentioned above challenged their employers’ processes for requesting medical and/or religious exemptions due to failure to apply a uniform standard of review, engage in the interactive process on an individual basis, collect all necessary information, permit application for both exemptions, give sufficient time to submit requests, and grant appropriate accommodations. Other potential questions or problems include, for example, whether employers should (or must) pay for testing/vaccines or their side effects, will lose employees who refuse to get vaccinated or tested when the labor market is already tight, will face repercussions for failing to comply with collective bargaining agreements or state laws that conflict with this mandate (including fines for requiring vaccinations), or may be held responsible for employee falsification of vaccine/testing documentation. As this area of the law rapidly evolves, please consult your employment law attorney to analyze whether your business must comply with these new mandates and how best to do so.

This article is for informational purposes only and is not intended to provide legal or tax advice. Receipt of or viewing information on this website does not create an attorney-client relationship. You may contact our firm to establish such a relationship, but in any event, please consult an attorney or tax professional of your choosing for advice on this or any other legal topic.

[1]See https://www.federalregister.gov/documents/2021/09/14/2021-19927/requiring-coronavirus-disease-2019-vaccination-for-federal-employees; https://www.whitehouse.gov/covidplan/; https://www.saferfederalworkforce.gov/downloads/Draft%20contractor%20guidance%20doc_20210922.pdf; https://www.federalregister.gov/documents/2021/09/14/2021-19924/ensuring-adequate-covid-safety-protocols-for-federal-contractors; https://www.saferfederalworkforce.gov/faq/testing/; https://www.saferfederalworkforce.gov/faq/vaccinations/; https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/. This article does not address healthcare-related vaccine mandates.

[2] OSHA’s mandate is scheduled to take effect on November 5, 2021. The actual testing process (if used by employers instead of only the vaccination mandate) must be commenced by January 4, 2021, while the other requirements must be met by December 5, 2021. See https://www.federalregister.gov/public-inspection/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard; https://public-inspection.federalregister.gov/2021-23643.pdf; https://www.osha.gov/sites/default/files/publications/OSHA4155.pdf; https://www.osha.gov/coronavirus/ets2/faqs; https://www.osha.gov/coronavirus/ets2; https://www.osha.gov/sites/default/files/publications/OSHA4162.pdf; https://www.dol.gov/sites/dolgov/files/OPA/newsletter/2021/11/key-dates-v2.pdf.; https://www.dol.gov/newsroom/releases/osha/osha20211104. While this mandate apparently does not require employers to pay for the vaccines or testing (unless the employer administers vaccines on-site), OSHA recognizes that other laws or contracts may require employers to pay for them and that “employers may choose to pay for some or all of the costs of testing as an inducement to keep employees in a tight labor market.” See https://www.osha.gov/coronavirus/ets2/faqs.

[3] Costin v. Biden, No. 1:21-cv-02484, Doc. No. 2 (D.C. filed Sept. 23, 2021); Doe v. Austin, No. 3:21-cv-1211 (N.D. Fla.).

[4] Brnovich v. Biden, No. 2:21-cv-1568 (D. Az. filed Sept. 14, 2021); Missouri, et al v. Biden, No. 4:21-cv-01300 (E.D. Mo. filed 10/29/21); Kentucky, et al v. Biden, No. 3:21-cv-00055 (E.D. Ky filed Nov. 4, 2021); Louisiana, et al v. Biden, No. 1:21-cv-03867 (W.D. La. Filed Nov. 4, 2021); Florida v. Nelson, et al, No. 8:21-cv-02524 (M.D. Fla. Oct. 28, 2021).

[5] BST Holdings, et al v. OSHA, et al, No. 21-60845, Doc. 00516083925, at 1-2 (5th Cir. Nov. 6, 2021); https://abc11.com/workplace-vaccine-mandate-lawsuits-president-biden-covid-19-vaccines/11203266/; https://www.tn.gov/attorneygeneral/news/2021/11/5/pr21-43.html; https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2021/pr21-43-petition.pdf; https://www.fisherphillips.com/news-insights/federal-appeals-court-blocks-oshas-mandate-or-test-emergency-vaccine-rule-what-does-this-mean-for-employers.html; https://www.ca5.uscourts.gov › opinions › pub › 21 › 21-60845-CV0.pdf; https://www.fisherphillips.com/news-insights/oshas-vaccine-ets-encounters-more-turbulence-as-appeals-court-extends-halt-how-can-employers-make-a-smooth-landing.html; https://www.morganlewis.com/pubs/2021/11/osha-ets-is-temporarily-stayed-state-legal-developments-merit-attention.

[6] United KP Freedom Alliance v. Kaiser Permanente, No. 4:21-cv-07894 (N.D. Cal. filed Oct. 7, 2021); Burcham, v. City of Los Angelos, No. 2:21-cv-7296 (C.D. Cal. filed Sept. 11, 2021); Sambrano v. United Airlines, Inc., No. 21-1074 (N.D. Tx. filed Sept. 21, 2021); Wright-Gottshall, v. The State of New Jersey, No. 3:21-cv-18954, Doc. 1 (D. NJ filed Oct. 18, 2021); Zywicki v. Washington, No. 1:21-cv-894 (E.D. Va. 2021); Darling, et al v. Sacred Heart Health System, Inc., No. 3:21-cv-1787 (N.D. Fla. filed Oct. 27, 2021).

[7] See id.; see also “OSHA Standards Development,” https://www.osha.gov/laws-regs/standards-development; https://www.abajournal.com/news/article/will-employer-vaccine-mandate-survive-osha-would-act-under-little-used-statutory-provision; https://www.cnn.com/2021/10/13/health/us-coronavirus-wednesday/index.html; https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/allergic-reaction.html; https://www.cdc.gov/coronavirus/2019-ncov/vaccines/safety/myocarditis.html?s_cid=10535:%2Bside%20%2Beffects%20%2Bcovid%20%2Bvaccine:sem.b:p:RG:GM:gen:PTN:FY21.

[8] See https://www.newsweek.com/states-ban-vaccine-mandates-have-covid-texas-california-new-york-abbott-1640793; https://wpln.org/post/tennessee-lawmakers-agree-to-another-special-session-this-time-to-fight-federal-covid-rules/; https://www.burr.com/2021/11/02/tennessee-passes-new-covid-19-legislation/; https://www.employmentlawinsights.com/2021/11/potential-new-tennessee-law-prohibits-many-businesses-from-requiring-proof-of-covid-19-vaccine-requires-government-contractors-to-apply-for-exemption/; https://www.morganlewis.com/pubs/2021/11/osha-ets-is-temporarily-stayed-state-legal-developments-merit-attention.

[9] “OSHA Standards Development,” https://www.osha.gov/laws-regs/standards-development; https://www.tn.gov/attorneygeneral/news/2021/11/5/pr21-43.html; BST Holdings, et al v. OSHA, et al, No. 21-60845, Doc. 00516083925, at 1-2 (5th Cir. Nov. 6, 2021); https://abc11.com/workplace-vaccine-mandate-lawsuits-president-biden-covid-19-vaccines/11203266/; https://www.tn.gov/attorneygeneral/news/2021/11/5/pr21-43.html; https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2021/pr21-43-petition.pdf. [10] See https://www.osha.gov/sites/default/files/covid-19-healthcare-ets-reg-text.pdf; https://www.littler.com/publication-press/publication/president-bidens-covid-19-action-plan-what-employers-want-know. [11] Heck v. The Copper Cellar Corp., No. 3:21-cv-158, Doc. No. 16 (E.D. Tenn. Aug. 4, 2021).

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