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(Nov. 8, 2021) — Just a day after officially taking effect, one of two new COVID-19 vaccine mandates issued by President Joe Biden’s administration was temporarily blocked Nov. 6 by a federal appeals court.
The U.S. 5th Circuit Court of Appeals ordered the required vaccine and testing results issued by the Occupational Safety and Health Administration (OSHA) on Nov. 4 be halted following a petition filed Nov. 5 by the Texas State Attorney General challenging the mandate’s authority. The attorneys general of Louisiana, South Carolina, and Utah, along with several companies, also joined.
OSHA announced on its website on Nov. 17 that it would stop implementation and enforcement of its mandate following the 5th Circuit’s reaffirmation of its previous temporary halt on Nov. 12.
The two new mandates, whose details were released publicly Nov. 4, collectively cover upwards of 100 million employees — about two-thirds of the U.S. workforce.
The OSHA mandate, which was issued under emergency authority, states companies with 100 or more employees must ensure their workers are either fully vaccinated against COVID-19 by Jan. 4, or they test negative for COVID-19 weekly. Unvaccinated workers must wear face coverings while working.
Employers are required to pay workers for the time it takes to get vaccinated and provide sick leave for workers to recover from any side effects by Dec. 5, but do not have to pay for or provide tests.
The mandate will apply to more than 84 million workers at 1.9 million private-sector employers once published in the Federal Register. Enforcement will largely fall to companies themselves.
The second rule, issued by the Centers for Medicare & Medicaid Services (CMS), requires millions of clinical and non-clinical employees at health care facilities receiving federal funding from Medicare or Medicaid to be vaccinated by Jan. 4 with no weekly testing exception.
The CMS mandate will impact roughly 17 million workers at 76,000 providers.
Fines for serious violations would start at nearly $14,000 per violation, and 10 times that for repeated breaches. The mandate does not state whether workers would or would not be fired due to refusal to be vaccinated or tested.
Backlash for the new rules began immediately following the administration’s initial announcement in September, including legal threats from two dozen Republican state attorneys general citing administrative overreach and accusations that an OSHA rule would be illegal and outside of the agency’s jurisdiction.
Legal experts have argued that protecting against a historic public health crisis such as the COVID-19 pandemic, which has killed more than 750,000 Americans and 5 million people worldwide, may be a worthy justification for the mandate versus constitutional challenges claiming individual or state rights’ infringement.
According to the latest data, around 70% of U.S. adults have been fully vaccinated and 80% have received at least one shot.
While some business leaders have called for extensions of the timelines set out by the mandates, others have said the rules could cause “irreparable harm” to impacted small- and medium-size companies.
The departure of even a handful of skilled employees at smaller companies, potentially to businesses which do not yet have similar vaccine rules, could be devastating when considering the loss of institutional knowledge and decreased productivity, along with the time and money it will take to replace them.
While employers will not be required to pay for testing, time off and paid leave for employees to either get the vaccine or get regularly checked could also quickly add up.
The mandates’ timing around the holiday season may also place an extra burden on already the strained retail and restaurant professions, among others.
Note: This article was updated on Nov. 22, 2021.
If you have any questions about the information above, please contact your E. Cohen advisor.
