There has been confusion surrounding the Biden administration’s vaccine mandate since the President first announced it in early September of this year. We discussed this in a blog post immediately after it was announced.
Sadly, but not surprisingly, the information we provided in September might as well be ancient history, as plenty has occurred in the courts regarding this topic in the time since.
At first, it appeared that businesses with more than 100 employees would be forced to require their employees to get vaccinated or conduct weekly tests. Then on November 6th, the 5th Circuit Court of Appeals put a hold on the OSHA-enforced mandate that was to begin in January 2022. The story didn’t end there, however.
The 6th Circuit Court of Appeals has overruled the 5th Circuit, and the case is already being expedited to the US Supreme Court to get a final ruling.
Employers have been pulled to and fro on this topic over the last couple of months. While I don’t have a crystal ball and can’t predict the future, I’m going to provide you with the most current and detailed information possible in this article.
Let’s look at what’s been happening and what employers could expect moving forward.
The 6th Circuit Court of Appeals has overturned the 5th Circuit’s stay put on the Biden administration’s mandate on December 20th. In short, the President’s mandate is to take effect, for the most part, as it was originally announced. There’s more info, though, so keep reading.
OSHA will now give employers until January 10th, 2022, to enforce employee vaccinations. They will also provide employers until February 9, 2022, to initiate weekly employee testing requirements. These new dates are slightly more lenient than the initial date of January 5th, 2022, which had been set when the mandate was first announced.
To be crystal clear, for employers of over 100 workers, you should consider the vaccine mandate back in effect just to be on the side of caution. It’s better to be prepared and not have needed to be as opposed to expecting the ruling to be overturned than finding yourself in a rush to get in accordance with requirements.
So that’s it? Is the mandate back on? Hardly. Within mere hours of the ruling, a collection of 27 state Attorneys General, religious organizations, private businesses, and trade groups filed the first of several emergency appeal applications to the U.S. Supreme Court requesting a stay, which the court has yet to issue.
That said, the Supreme Court is planning on getting involved, and far more quickly than they normally take on cases.
This situation is confusing beyond measure, so I’ll try to simplify it. The Biden administration announced a vaccine mandate for workers (and contractors) at Medicare- and Medicaid-funded facilities. This mandate was independent of the larger mandate under discussion for businesses and organizations with more than 100 employees.
At the beginning of December, 40 States had sued the federal government to prevent this mandate from being enforced, and the lower courts ruled in their favor. Just weeks later, on December 15th, an appeals court ruled that some states may enact bans on vaccine mandates while allowing other states to maintain the mandates they’ve put in place for healthcare workers.
Currently, 26 of 40 states that originally filed suit against the mandate requiring federal medical workers (and contractors) to be vaccinated are now permitted to mandate this group to be vaccinated once again.
If you’re reading that and saying to yourself, “…what?” You’re not alone, not by a long shot. With that as the backdrop to this whole mandate situation, it should come as no surprise that one thing that all groups, pro-mandate, anti-mandate, are in agreement about is that the Supreme Court needs to make a ruling on the mandates.
The Supreme Court has acted at lightning speed and is preparing to hear the appeals on January 7th of 2022, which comes far sooner than the SCOTUS normally takes up cases. They will hear appeals to both Biden mandates, the one directed at private businesses with over 100 employees, as well as the mandate that applies to any healthcare facilities that receive Medicare and Medicaid funding.
This is the million-dollar question. If employees take off work to get vaccinated, they will be paid through PTO, and some details about this are emerging. The costs of providing weekly tests to employees who decline to get vaccinated, shockingly, will not be laid on to the employer.
In terms of PTO, it’s capped at four hours for the actual process of getting the vaccine and “a reasonable amount of time” should the vaccinated employee need to recover from the effects of the vaccine. No doubt, some employees will milk that in instances they’re not really in need of the time off, but as it’s coming from their existing PTO, it shouldn’t matter.
It’s also a situation that employers shouldn’t go near with a ten-foot pole, as no one wants to be getting calls from journalists asking why they’re pressing their employees to come back to work while they’re still suffering the side effects of the COVID vaccine.
While I cited a source above that said employers will not be required to pay for weekly tests, this is only as dictated by the OSHA regulations. Particular agreements, state or city laws, or any other number of contracts between employer and employee might require that the employer pays for such measures in specific instances.
According to two recent polls done by Axios/Ipsos and Morning Consult, the public favors vaccine mandates by over 50%. Axios announced that 58% of those polled between November 19-20 favored a federal vaccine mandate, and Morning Consult found 55% in favor of the mandate in a more recent poll done on December 4th.
It should come as no surprise that further detailed polling found that urban areas favored mandates, in rural areas, less so. Traditionally Democratic states are more in favor, traditionally-Republican states are less in favor.
I may be entirely wrong, but I have found that even SCOTUS justices seen as moderately to extremely conservative somehow found public health issues to be of greater importance than their political ideologies. The numerous failed attempts to dismantle the affordable care act (Obamacare) make me believe that the SCOTUS will actually favor the Biden/OSHA mandates as a necessity in times of extraordinary social and economic turbulence.
The belief that conservative justices give rulings based on the party that placed them in their position is often a misguided assumption. The very nature of the US Supreme court is to have a panel of justices who no longer have to worry about doing any political favors, as they’ve, in many senses, already crossed the finish line of their professional careers.
I predict that the mandate is upheld as even conservative justices will see the value in making a decision that gets the American economy back on solid footing sooner rather than later.