"The Biden administration’s workplace vaccine mandate was scheduled to take effect Jan. 10. Pursuant to the Occupational Safety and Health Administration’s Emergency Temporary Standard, employees at businesses with more than 100 workers must be fully vaccinated or submit to masking and weekly testing.
But on Nov. 6, the New Orleans-based 5th U.S. Circuit Court of Appeals granted a temporary restraining order against President Joe Biden’s vaccine-or-test mandate. The court ruled “the petitions give cause to believe there are grave statutory and constitutional issues with the mandate.” In December, the 5th Circuit’s stay was vacated.
Also in December, the U.S. District Court for the Southern District of Georgia put a vaccination mandate for federal contractors on hold after finding Biden exceeded his authority.
The U.S. Supreme Court heard oral arguments Jan. 7 in two cases challenging Biden’s vaccine policies. After the ABA Journal went to press the Supreme Court blocked the vaccine-or-test mandate for those who work at companies with more than 100 workers but ruled to allow a vaccine mandate for certain health care workers.
“A lot of employers are in holding patterns waiting to see what happens,” says Susan Huntington, who is chair of Day Pitney’s health care practice and based in Hartford, Connecticut.
“Nobody knows how long the [temporary restraining order] will last,” adds Michelle Roberts Gonzales, a senior associate in Hogan Lovells’ Los Angeles office. “We have clients in Texas and Florida concerned about potential conflicts or who are federal contractors, so we’re telling them to prepare as if the OSHA regulation is going forward; that’s the safest course of action.”
The stay has thrown a monkey wrench into what was already a chaotic process for some businesses and the law firms advising them to prepare and comply with the planned onset of the vaccine mandate. For one thing, many employers do not routinely keep medical information on employees. As such, it’s imperative that they be cognizant of safety and confidentiality issues."
This article was originally posted in the ABA Journal.
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