Biden’s Covid-19 Vaccine And Testing Mandates For Large Employers Are Reinstated By Court

In what could be a major step forward in the Biden administration’s fight against the coronavirus crisis, a federal appeals court Friday night reinstated President Joe Biden’s vaccine and testing mandates for all businesses with more than 100 employees.

CNBC reported that, “The ruling by the 6th U.S. Court of Appeals in Cincinnati lifted a November injunction that had blocked the rule from the Occupational Safety and Health Administration….”

According to the news organization, “The Justice Department argued last week that blocking the requirements would result in ‘enormous’ harm to the public, as hospitals brace for an increase in Covid cases this winter and the highly mutated omicron variant takes root in more states.”

“Covid-19 is spreading in workplaces, and workers are being hospitalized and dying,” the Justice Department argued in a court filing on Friday. “As Covid-19 case numbers continue to rise and a new variant has emerged, the threat to workers is ongoing and overwhelming.”

White House Welcomes Decision

“The OSHA vaccination or testing rule will ensure businesses enact measures that will protect their employees,” Kevin Munoz, a White House spokesman, said in a statement.

“Especially as the U.S. faces the highly transmissible Omicron variant, it’s critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment.”

More Legal Challenges Ahead?

As was the case when the mandates were announced, there could be legal challenges to tonight’s ruling.

AP reported that, “Arkansas Attorney General Leslie Rutledge, a Republican, said she would ask the U.S. Supreme Court to block the order. The Job Creators Network, a conservative advocacy group, said Friday it had already asked the Supreme Court to block the mandate.

“The Sixth Circuit’s decision is extremely disappointing for Arkansans because it will force them to get the shot or lose their jobs,” Rutledge said.

“South Carolina Attorney General Alan Wilson, who also is chairman of the Republican Attorneys General Association, said in a Twitter message Friday that he was confident the mandate could be stopped.”

‘A Real Game-Changer’

Steve Bell is a partner at the international law firm of Dorsey & Whitney in its labor and employment practice. He has advised employers on how to handle vaccine issues/mandates with workers. When Biden announced the plans for his mandate in September, Bell told me it “is a real game changer for many employers. Now that the federal government will be mandating vaccinations for federal employees and contractors, the impetus for other employers to mandate vaccinations for the workforce will increase exponentially. 

“The fact that the largest employer in the U.S. (the federal government) is mandating vaccines will give comfort to private employers who have been hesitant to require vaccines. It may also set the standard for what a reasonable employer should be doing in the face of this continuing epidemic,” Bell said.

The First Mandate For Private Employers

Kathryn Bakich is the health compliance practice leader and senior vice president at employee benefits consulting firm The Segal Group [there is no connection between the firm and this author]. She said in September that, “This is the first vaccine mandate ever applicable to private employers. Employers are moving toward mandatory vaccination policies at great speed. 

“Those that are not mandating vaccines are considering whether they can implement premium differentials in their health plans to penalize employees who won’t get the vaccine. Wellness regulations currently permit incentives and penalties for taking legitimate health-related steps, so a Covid-19 vaccination incentive should be permissible. I would expect that the Biden administration would move to help employers by explicitly issuing guidance to permit these incentives,” she said.

Some Relief For Companies

Devjani Mishra, a leader of the Littler Mendelson law firm’s Covid-19 task force told me when Biden announced the mandates that, “the fact that these rules will apply across the board to companies with more than 100 employees may also offer some relief to employers who have been reluctant to impose mandates.

“Throughout 2021, we’ve seen that employers have been thinking very hard about whether to require workplace vaccinations, the ramifications this could have for their workplaces and whether they risk losing employees. The administration’s approach will help equalize the playing field and take some pressure off employers who have been concerned about moving too fast or too early in this important area,” Mishra observed.