The Biden Administration’s separate COVID-19 vaccine mandates for federal contractors and for all employers of more than 100 workers are being challenged in court by a broad array of Republican state governments, industry associations and individual employers.
At the same time, serious legal issues have arisen from confusion over the two orders and nationwide political conflicts have been sparked by the terms and requirements of both mandates, which have angered a large swath of the public, resulting in protests and labor actions.
On Nov. 6 the U.S. Fifth Circuit Court of Appeals issued a temporary restraining order blocking imposition of the Occupational Safety and Health Administration's (OSHA) emergency temporary standard (ETS) on COVID vaccination and testing, just one day after the order was issued.
The sweeping orders provide inviting targets for lawyers who seek to wipe them from the books, inviting challenges over constitutional issues and allegations of administrative overreach. The persistent politicization of health policy during the COVID-19 pandemic has made such courtroom battles inevitable.
Four groups totaling 26 state governments have asked the Fifth, Sixth, Eighth and Eleventh Appeals Courts to review the legality of the OSHA standard. Also suing are temporary staffing agencies, manufacturing industry employers, a coalition of small businesses and the Republican National Committee, in the Fifth, Sixth, Seventh, Eighth and D.C. circuits, asserting they will suffer irreparable economic harm if the ETS remains in effect.
Because of the multiple lawsuits filed in various federal judicial circuits, according to federal statute all of the cases will be consolidated and transferred to one circuit chosen by lottery, explain attorneys Melanie Paul and Nawal Chaudry of the law firm of Jackson Lewis.
A judicial panel on multidistrict litigation made up of seven circuit and district judges from different circuits designated by Supreme Court Chief Justice John Roberts is slated to meet on Nov. 16 to choose the circuit that will hear the case.
Arguments Against the ETS
Among the arguments arrayed against the ETS are that its adoption violated the non-delegation doctrine and the Commerce Clause of the U.S. Constitution. They say the standard is a major rule that requires specific legislative authority. The absence of such authority violates what is called the Non-delegation Doctrine and constitutes a legislative act beyond OSHA’s jurisdiction. Also, it is charged that because OSHA does not regulate commerce, it cannot take this action under the authority of the Constitution’s Commerce Clause.
Those suing also hold that public health and safety policy are the province of policy powers granted to the states and not to the federal government. Another issue that courts have cited in the past to overturn other emergency temporary standards issued by OSHA is that if no “grave danger” exists there is no emergency needed to justify the ETS, and thus no reason for the agency to not follow the usual rulemaking process.
Those bringing suit point out, for example, that 70% of people already have received at least one dose of a vaccine and infection rates are declining. Another argument is that COVID-19 is a communicable disease threatening public health at large and is not a hazard unique to the workplaces, and as such is beyond OSHA’s ability to regulate.
Some of the petitioners also argue that OSHA has gotten the science wrong by ignoring the natural immunity many people possess because they survived the disease, Paul and Chaudry add. This also resulted in the ETS erroneously defining as the “grave danger” justifying the ETS as the lack of vaccination, rather than lack of immunity, among the populace.
While the ETS is blocked under the preliminary injunction (and perhaps later under a permanent stay), employers don’t need to comply with its terms. However, because future court developments could preserve the ETS, and with the Jan. 4, 2022, deadline right around the corner, it would be a good idea for employers to begin preparing for it now.
At the same time the OSHA ETS was announced on Nov. 5, the White House also chose to change the deadline for employer adherence to the federal contractor vaccine mandate to Jan. 4 from the original date of Dec. 8. The contractor order faces court challenges as well from 22 state governments, but it has not yet been stayed by a court and currently remains in effect.
One problem for federal contractors is that while the contractor order does not allow employees to choose not to be vaccinated in exchange for being regularly tested and required to wear masks, the OSHA ETS does allow this as an alternative to the jab.
Marc Antonetti, an attorney with the law firm of Baker & Hostetler, tells employers, “Although the OSHA requirements do not apply to workplaces covered by the federal contractor mandate, employers that have multiple locations could find themselves covered by the federal contractor mandate at some locations and covered by the OSHA ETS at other locations. Likewise, there are different recordkeeping and notice requirements under each mandate. Simultaneous compliance with both sets of rules will be complex.”
Attorney Richard Arnholt of the Bass, Berry & Sims law firm also warns, “Despite the multiple apparent infirmities in the contractor vaccine mandate and the demonstrated willingness of at least one circuit to halt vaccine mandates, there is no guarantee that the contractor vaccine mandate will be stayed. Unless and until that occurs, contractors should continue to work toward compliance to ensure they can meet the revised Jan. 4, 2022, vaccine deadline.”