On Friday, a US Appeals Court overturned the temporary halt on the vaccine mandate for large businesses. This is interesting to note because some of the same analysis used in connection with whether the large business mandate is enforceable could apply to the contractor vaccine mandate.
The OSHA mandate applied to employers with 100 or more employees. It required “employees be vaccinated or wear a protective face covering and take weekly tests but allows employers to choose the policy implementing those requirements that is best suited to their workplace.”
The appeals court looked closely at the authority of OSHA and determined:
Longstanding precedent addressing the plain language of the Act, OSHA’s interpretations of the statute, and examples of direct Congressional authorization following the enactment of the OSH Act all show that OSHA’s authority includes protection against infectious diseases that present a significant risk in the workplace, without regard to exposure to that same hazard in some form outside the workplace.
The appeals court also noted that “employers may choose to comply with the standard by enforcing the mask-and-test component, which are entirely temporary in nature and do not create irreparable injuries.”
This is separate from the federal contractor mandate that is currently on hold due to a Georgia federal judge ruling. It is also separate from the mandate for health care workers. For the health care mandate, a federal appeals court recently issued a ruling that the health care worker vaccine mandate can be enforced in about half of the country.
The OSHA mandate allows testing OR a vaccine, so it is different in effect from the federal contractor mandate, which requires vaccination absent an accommodation or limited exceptions. It is also enforced by OSHA, which has a long history of enforcing workplace safety rules. These two facets of the OHSA mandate, and possibly more, make it a different animal than the federal contractor mandate, so it’s not certain how an appeals court will view the contractor mandate.
We will keep you posted on how courts continue to interpret the federal contractor vaccine mandate, as well as other vaccine mandates.
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