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November 15, 2021

Federal COVID Vaccine Mandate Still In Limbo, But Businesses Might Want To Prepare

PLEASE NOTE: MSCI is relaying the following information so its members can stay up to date on what, if implemented, would be the most wide-reaching workplace safety regulation in U.S. history. MSCI has not taken a position on the federal vaccine mandate and, in its reporting, is simply trying to help members understand the legal challenges to this rule, what could come next, and how businesses might prepare.

As Connecting the Dots reported last week, the U.S. 5th Circuit Court of Appeals in New Orleans temporarily halted the Occupational Safety and Health Administration’s (OSHA) vaccine rule for employers with 100 or more employees. On Friday, November 12, a three-member panel of that court rejected the Biden administration’s request to lift the stay. The court now will assess whether the mandate should be permanently blocked.

While the appeals court’s ruling was unequivocal —OSHA cannot proceed with enforcing its mandate — this ruling is the beginning, not the end, of the legal process, and there is no guarantee that the rule will be permanently thrown out. More than half of state attorneys general have challenged this rule and there are active cases in six courts of appeals. It is very possible that the regulation’s fate could ultimately be decided by the U.S. Supreme Court.

While the vaccine mandate has been suspended, the Biden administration is proceeding as if the rule eventually will be allowed to move forward. Indeed, on November 10, the National Labor Relations Board Office of General Counsel issued a memorandum outlining its views on an employer’s duty to negotiate with labor unions over implementation of the rule. The memo said, “Although an employer is relieved of its duty to bargain where a specific change in terms and conditions of employment is statutorily mandated, the employer may not act unilaterally so long as it has some discretion in implementing those requirements.”

With the mandate in limbo, some trade associations have encouraged their members to be prepared for any scenario. Labor lawyers also are encouraging businesses to be ready. Michelle Strowhiro, a lawyer at McDermott Will and Emery, told The Hill, “I think it’s prudent for employers to proceed with planning assuming that the OSHA rule, at least in some form or fashion, will be implemented pending final resolution of the various court cases.”

As a reminder, under the rule, by December 5, 2021 employers must collect employees’ proof of vaccination and provide paid leave for those getting the shot, while unvaccinated employees must begin wearing a mask. Employers that don’t comply face fines of up to $136,532 for willful violations. OSHA has provided a webinar and comprehensive list of frequently asked questions that may be of help to employers trying to navigate this issue.

Read more from Winston & Strawn LLP here.

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