Vaccine Mandate for Big Employers Back On, For Now

Updated Dec. 21 with comment from FMI, NGA

A federal appeals court panel on Dec. 17 allowed President Joe Biden’s COVID-19 vaccine mandate for large private employers to move forward, reversing a stay on the requirement, the Associated Press reported. While the deadline for compliance with the Vaccine Mandate Emergency Temporary Standard (ETS) from the U.S. Occupational Safety and Health Administration (OSHA) technically remains Jan. 4, 2022, enforcement will not begin until Jan. 10.

The 2-to-1 decision by a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati overrules a decision by a judge in the U.S. Court of Appeals for the 5th Circuit in New Orleans that had paused the mandate nationwide.

The vaccine mandate applies to companies with 100 or more employees, inclusive of part-time staff, and will affect approximately 84 million U.S. workers. Employees who are not fully vaccinated would have to wear face masks and be subject to weekly COVID tests. There would be exceptions, including for those who work outdoors or only at home.

The ETS from OSHA was scheduled to take effect Jan. 4; however, "to account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS," the agency said in a notice on its website. "To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good-faith efforts to come into compliance with the standard."

In any case, the temporary standard expires May 4. As the National Grocers Association's Robert Yeakel noted in a blog post last week, for the regulations to become permanent, OSHA would need to issue a permanent standard ahead of that expiration and provide a timeline for enforcement of the permanent rule. 

When OSHA published the rules in early November, 27 states joined with several industry associations, including FMI–The Food Industry Association, the National Retail Federation, the National Association of Convenience Stores (NACS) and others, to push back against ETS. They argued the agency was not authorized to make the emergency rule in part because the coronavirus is a general health risk and not one faced only by employees at work.

The panel’s majority disagreed. "Given OSHA's clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace," Judge Julia Smith Gibbons said in her majority opinion. "No virus—HIV, HBV, COVID-19—is unique to the workplace and affects only workers. And courts have upheld OSHA’s authority to regulate hazards that co-exist in the workplace and in society but are at heightened risk in the workplace.”

"Vaccination and medical examinations are both tools that OSHA historically employed to contain illness in the workplace," she said.

Gibbons noted that the agency’s authority extends beyond just regulating "hard hats and safety goggles." She said the vaccine requirement “is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”

In her dissent, Judge Joan Larsen argued that vaccinated workers "do not face 'grave danger' from working with those who are not vaccinated."

In response to the 6th Circuit Court of Appeals' decision, FMI, the National Retail Federation and other industry partners filed an emergency application Dec. 17 for an immediate stay in the U.S. Supreme Court. The 6th Circuit's move "will exacerbate ongoing labor and supply-chain pressures and negatively impact our members’ ability to focus their efforts on meeting their customers’ needs during the holiday season," FMI President and CEO Leslie Sarasin said in a statement issued Dec. 18.

The NGA's Yeakel, who serves as the organization's director of government relations, looked ahead to possible outcomes should the Supreme Court decide to hear the case. "If the Supreme Court does block federal OSHA’s vaccine mandates but continues to give states the freedom to pursue their own vaccine requirements or private-sector prohibitions, we should expect to see new approaches on an ad hoc basis," Yeakel wrote. "Delegating this authority to the individual states may be a prudent solution, but this path forward will likely spell headaches for businesses with footprints in various states."

In a statement Dec. 20, the NGA added: "Independent community supermarkets and wholesalers have worked since the vaccines were first available to ensure their front-line workers had access, and NGA members with pharmacies have been important partners to help deliver vaccines and boosters to the communities that they serve. We support efforts to increase vaccination rates that will not place added pressure on an already strained food supply chain and labor force."

A version of this story originally appeared on CSPDailyNews.com.