*** Breaking News ***
Effective November 17, 2021, OSHA announces that it has “suspended activities related to the implementation and enforcement of the [Vaccine Mandate] pending future developments in litigation.” OSHA goes on to criticize the Court’s categorization of the ETS process (whereby OSHA can petition to circumvent the rulemaking process in the case of a true emergency). Reading a bit between the lines, I interpret OSHA’s response as an acknowledgement of their awareness that White House presented OSHA the unhappy task of implementing a Vaccine Mandate which is way outside their authority, so OSHA is content to step aside and let the Court sort it out. However, by its language choice in their critique of the Court’s Decision, OSHA is communicating that they will dig in and fight any ultimate decision which interferes with their actual grant of ETS authority.
For now, with the Vaccine Mandate stayed, and OSHA not pushing enforcement, the Mandate is truly paused. You should still meet with your team to discuss next steps to address the issues presented below, but for now, the compulsive elements of the Mandate, including all deadline and reporting requirements are suspended until another Circuit Court enters a decision in opposition to that of the Fifth Circuit, at which time the matter will be teed up for the Supreme Court to decide.
Vaccine Mandate Update
The U.S. Court of Appeals for the 5th Circuit has extended its stay on the Biden administration’s COVID-19 vaccine mandate for private employers, which the unanimous three-judge panel called “fatally flawed” and “staggeringly broad.” While the stay remains in place, “OSHA shall take no steps to implement or enforce the Mandate until further court order.” While this is officially a pause to allow “adequate judicial review of the . . . motions for a permanent injunction . . .” it seems likely the Court will grant permanent injunction for many of the reasons we discussed last week.
The Court’s decision is here if you’d like to read it.
In summary, the Fifth Circuit observed that the Mandate is “fatally flawed” for reasons including that it “. . . grossly exceeds OSHA’s statutory authority. The Court also found unavailing OSHA’s shaky claim that it was justified in circumventing the normal rule-making process by using the Emergency Temporary Standard, given that “the entire globe has now endured [COVID-19] for nearly two years, and OSHA has spent nearly two months responding to the White House’s announcement of the mandate.”
The Fifth Circuit’s ruling was encouraging in that it appeared to allow at least some room to step away from the politics and emotional appeal arguments and include in this debate the actual demonstrable science and old-fashioned common sense which has been either missing from this discussion or has been buried in political rhetoric. For example, in its decision, the Fifth Circuit noted that COVID-19 is likely far more dangerous to some employees than others by comparing a hypothetical 28-year-old truck driver who spends the bulk of his workday alone with a 62-year-old prison janitor who works in close quarters. The Court also noted that a “naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus.”
These observations appear to open the door for the powers-that-be to engage in an unbiased examination of, and transparent reporting on three very important issues which until now the administration’s catechism has studiously ignored, or summarily dismissed: (i) the rapid loss of the efficacy of the vaccines, (ii) the question of whether and to what extent the vaccines’ reduction of symptoms in the vaccinated, coupled with the inability to prevent the vaccinated from transmitting the disease, combine to arguably make the vaccinated potentially dangerous to the unvaccinated who don’t benefit from natural immunity; and finally (iii) exactly determining the strength of natural immunity (recovery from a prior infection), appears to certainly be worthy of additional study.
If actual data, unimpaired by political doctrine, shows that the vaccines are effective, low-risk, and long-term effective, even for people with natural immunity, then this would certainly help convince at least some of the “vaccine-hesitant” that it is in their best interest to be vaccinated. On the other hand, if the results show the opposite, then that should accordingly inform the administration’s policies regarding compulsive vaccination.
Conclusion
While it is very likely that the Vaccine Mandate will be overturned, largely for the reasons set out in our first article on the topic, it is also very likely that the legal outcome won’t matter, because the real thrust of the Mandate is to nudge corporate America into carrying out the wishes of the administration, entirely separate and apart from the OSHA mandate. The White House has been urging employers to force employees into a submit-or-be-fired situation for months. Just after the Fifth Circuit issued its first order temporarily halting the Mandate, the White House almost immediately urged businesses to ignore the ruling and proceed to make vaccination a condition of employment for most private-sector employees. Federal government employees have already been subject to compulsory vaccines, and in September, the White House even showed strong support for court-martialing and dishonorably discharging soldiers who refused the vaccination.
It is not likely that the administration is going to give up on the Mandate, no matter what the Supreme Court rules, or what unbiased scientists conclude. Hope is not a plan, so here, you should consider planning for the most likely outcome. If you fall under the Mandate’s umbrella, consider taking the following actions:
- Create a vaccination policy. The Mandate is stayed, but that won’t last forever. It is possible that the Mandate moves forward in some form which retains the penalty clause, making employers subject to penalties of up to $13K or more per infraction. Take the time now to develop a vaccination policy, covering vaccination / testing, records maintenance, and required reporting.
- Prepare to implement your vaccine policy:
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- First, determine whether you will impose mandatory vaccination as a condition of employment. You won’t easily be able to chance course once you implement this policy, so choose wisely. Consider the moral and religious implications. Then give some thought to the practical impact on employee morale, retention, and safety, along with the amount of expense you will incur by providing paid time off for vaccination and recovery from side effects.
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- Create forms for applications for exemption on religious or medical bases.
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- If you don’t elect to impose vaccination, then prepare for weekly testing by laying in supplies and modifying schedules to allow employees time to be tested. If your teams work remotely, then consider training field employees on the testing process and the preparation and communication of confidential records.
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- No matter what your choice, your medical records and those of your employees, will become confidential medical records subject to privacy considerations under both the OSH act, and potentially under HIPAA. Ensure that you train personnel to obtain, store, and communicate information on testing and or vaccination status, and be prepared to show that you have demanded that your employees show their papers. All information should be stored separately and securely. A good idea may be to visit with your IT provider about HIPAA compliant systems and then to designate and train key employees to take charge of this data.
As always, bring your entire legal, HR and IT team to these discussions and work out the plan which makes the most sense for you.
Ensley Benitez Law, PC
8140 Walnut Hill Lane, Ste. 835
Dallas, Texas 75231
469-983-6500
© Karen Ensley and Brian Benitez, Ensley Benitez Law, PC, 2021. All rights reserved. This article is provided for educational reasons exclusively and is not meant to be construed as legal advice. Ensley Benitez Law, PC, will represent you only after being retained and that agreement is made in writing.
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