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COMMENTARY FROM COUNSEL
BIDEN ADMINISTRATION COVID-19 VACCINE MANDATES - ON [TEMPORARY?] ICE?
In September, the Biden Administration enacted Covid-19 vaccine mandates for: (1) federal contractors; (2) health care workers; and (3) companies with more than 100 employees. As of the date of publication, it cannot enforce a single one. This is because federal courts have blocked enforcement of the provisions either through preliminary injunctions or stays. This means federal regulators cannot enforce the mandates until courts give them the green light. The current status of each of the vaccine mandates is discussed more fully below.
Federal contractors
On December 7, a federal judge in Georgia blocked Biden’s vaccine mandate for employees of federal contractors. The preliminary injunction, preventing enforcement of the mandate nationwide, came in a case brought by Republican attorneys general from seven states. In his ruling, the judge questioned whether the federal government had the authority to impose the mandates on federal contractors and also raised the potential impact the mandate could have on the nation’s economy. The terms of the mandate require employees of federal contractors to receive their second dose of Pfizer or Moderna or their single dose of Johnson & Johnson by January 4, 2022. While some federal contractors might consider delaying vaccination deadlines the longer the injunction stays in place, those employers should be prepared for the legal landscape to change rapidly.
Healthcare workers
The week prior to the ruling in Georgia, a different judge, this time in federal court in Louisiana, blocked Biden’s vaccine mandate for health care workers. As with the injunction on the federal contractor mandate, the judge found that federal regulators likely did not have authority to impose a vaccine mandate. Instead, the judge considered that to be a matter for the Congress. While this injunction is in effect nationwide, the government has appealed the trial court’s rulings.
Companies with more than 100 employees
In mid-November, a federal appeals court blocked Biden’s vaccine mandate for companies with more than 100 employees. The panel of judges held the regulation was “fatally flawed.” Among other reasons, the judges found the mandate to be both over- and underinclusive, as the mandate failed to distinguish between relative coronavirus risk levels different companies face and arbitrarily exempted businesses with fewer than 100 employees, even though those employees may be at similar or greater risk levels for contracting Covid. Additionally, the judges determined Covid-19 did not pose a “grave danger,” which is required under the emergency rule making procedures engaged in by the federal government. Since the judges blocked the mandate, the case has been consolidated with more than 30 other lawsuits challenging the mandate. A different appeals court is now considering the consolidated case, and recently refused to lift the stay.
Now what?
While the mandates are on hold across the country, it may not be that way forever. If an appeals court were to lift the injunctions and stays for any or all of the three mandates, employers would need to act quickly. As stated above, the federal contractor mandate has a January 4, 2022 vaccination deadline. The mandate for large employers had a deadline of December 5, 2021. This means that certain businesses may need to have mechanisms in place now to comply with the terms of the mandates as soon as courts give regulators the go-ahead. Preliminary injunctions and temporary stays are always fluid in nature, but this is particularly true when it comes to the coronavirus. Keep in contact with legal counsel to stay up to date on how the vaccine mandates, and the lawsuits challenging those provisions, impact you and your clients.
