It didn’t take long for unions to respond to the federal vaccine mandate. Just days after the mandate was announced by OSHA, a federal appeals court suspended the rule, meaning the directive requiring immunizations or weekly testing for employers of more than 100 people is suspended.
The Fifth Circuit of Appeals has declared the stay, although this is only one of many appeals against the rule. OSHA’s temporary emergency standard is now being challenged before the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, eleventh, and DC Circuit Courts. So what does this mean for North Texas employers?
For now, the deadlines for a list of COVID-19 and possible tests and vaccines are not in effect, but the cases will most likely be consolidated into multi-channel litigation. This is where it gets interesting. Federal rules state that a panel chosen by the Supreme Court will hold a lottery on Tuesday to select the United States Court of Appeals to hear the consolidated dispute, with each court that appealed obtaining an entry for the draw. Given the massive impact of the ruling, the Supreme Court may accept the case on appeal of the district court’s decision. So we may be a long way from the last word, but that doesn’t mean employers should stand aside.
Some circuits are considered to be more liberal than others, which may have an impact on the judgment of the consolidated dispute. Employment lawyer Jason Weber says the ruling could be made before Thanksgiving and business leaders need to know what to do in the meantime.
Weber’s advice is to continue to prepare for the rule’s implementation. “These are not policy changes that you can implement overnight. It takes a lot of work to create these policies, get the verification you need, and prepare for compliance. If you want to move forward and not be caught off guard, you need to start taking action even though it may not take effect. “
This means working on a policy that complies with the rule and working towards obtaining a list of whether employees are vaccinated. Weber also sees a way for companies to link the contradictory Texas executive order, which bans proxy vaccines, and the federal rule, which requires them. While an employer offers testing as an alternative to vaccination, they technically do not require a vaccine. It would also comply with the federal rule, if it were to come into force. “It has been tested in the courts, so we don’t know for sure, but I think you could interpret it that way,” Weber said.
Weber says he has clients taking a variety of approaches, though most have gone full steam ahead, assuming OSHA will hold up due to the threat of the virus. Some companies want to implement this kind of plan anyway, so having a federal mandate gives them cover in the eyes of their employees.
By now, human resources officials are used to being on guard and reacting to changes in federal, state and regional guidelines related to the pandemic. Fatigue is still a factor, however, and no one wants to embark on a policy that they will have to repeal in a few weeks. For this reason, many companies take a wait-and-see approach while preparing behind the scenes.
“You don’t want to be caught off guard with this,” Weber says. “You always want to start taking steps to prepare for this or at least think about what approach you’re going to take and what policy you’re going to implement. “