OSHA vaccine mandate put on hold by federal appeals court

Tonda Rush

Nov 15, 2021

Member Alert: Status of Vaccine Mandates
November 15, 2021
Contact: Tonda Rush, tonda@nna.org

The Emergency Temporary Standard by the U.S. Occupational Safety and Health Administration (OSHA) has been stayed by the U.S. Court of Appeals for the Fifth Circuit in New Orleans, which ordered OSHA to stop enforcing the mandate.

That means the requirement for employers of 100 persons or more to require either vaccinations or regular testing is no longer in force. The Fifth Circuit last week affirmed its earlier action to put the mandate on hold, expressing its view that OSHA had exceeded its statutory authority with the mandate. Among the reasons it cites is the constitutional preference for state-level governance on the use of enforcement “police powers.”

This decision may affect some community newspaper groups.

For now, here is the state of legal authority.

For employers of fewer than 100 employees, there was no federal requirement. If there is a state vaccine requirement, it will be the governing law. The state attorney general will be the authority to check on whether your company is required to do anything.

For employers of 100 employees or more, the federal requirement is suspended. If there is a state requirement for vaccines, it becomes the governing law.

For most employers, the option of requiring vaccines, masks, testing and other prevention actions is still in place at the employer’s election. But there may still be restrictions for some employers, from labor union agreements, individual employee contracts or state laws. Though about a dozen states prohibit government employers from requiring the vaccines, only a few states (such as Montana, New Hampshire and Texas) restrict private employers from issuing such workplace rules. But several more states are considering restricting employers’ options. including Florida and Oklahoma where legislation is pending. Many of these state laws are being challenged in court, so the situation is in flux.

Employers may wish to consider requests to avoid the vaccine on religious or health grounds, to avoid potential discrimination lawsuits. Please check with your attorney as you craft your own policies on COVID-19 actions. Also, follow statements by your state attorney general and keep an eye open for more legislation.