OSHA’s 100 Employee Vaccine Mandate – Dead in the Water

On November 18, 2021, OSHA announced that it has suspended activities to implement and enforce its COVID-19 Vaccination and Testing Emergency Temporary Standard, (ETS) pending further legal developments. The announcement is based upon the Fifth Circuit Court of Appeals’ November 12, 2021 grant of a motion to stay the ETS. The Sixth Circuit will next hear the matter and determine whether to uphold or lift the stay imposed by the Fifth Circuit. From there, the matter will likely go to the Supreme Court for ultimate resolution. How long this will take and what the outcome will be is anybody’s guess, however, the Fifth Circuit’s opinion strongly suggests that the mandate will not stand.

Finding the mandate “fatally flawed on its own terms,” the Fifth Circuit based its stay on the belief that the mandate involved grave statutory and constitutional issues. The Court found the mandate to be “the rare government pronouncement that is both overinclusive, (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “ ‘grave danger’ ” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat).” The Court went on to detail numerous other flaws with the mandate, including that it failed to address an actual emergency, is “staggeringly overbroad,” exceeds the federal government’s authority under the Commerce Clause, and attempts to regulate activity that falls squarely within a State’s police power.

Bottom Line

Employers with more than 100 employees can breathe a sigh of relief, at least for now. Employees who do not want to take the vaccine can live without the fear of losing their job. However, many employers have implemented their own vaccine mandate. For the time being, an employer imposing a vaccine mandate can legally require employees who do not wish to be vaccinated to provide a medical or religious exemption or face termination.