Employment Law Alert – Will President Biden's COVID-19 Vaccination Policy Survive?


Last week President Biden announced details of his administration’s vaccination policies, which will affect most mid-sized and large employers and more than 84 million employees. As part of the announcement, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) published details of a requirement for employers with 100 or more employees to mandate its employees to become vaccinated or undergo weekly COVID-19 testing.

Under the rule, covered employers are required to:

  1. Get their employees fully vaccinated by January 4, 2022 and require unvaccinated employees to produce a negative test on at least a weekly basis. (Generally speaking, employers are not required to provide or pay for tests).
  2. Pay employees for the time it takes to get vaccinated and, if needed, for sick leave to recover from side effects, by December 5, 2021.
  3. Ensure unvaccinated employees are masked by December 5, 2021.
  4. Provide notice to employees of:
  • the employer’s vaccination policy;
  • the CDC’s “Key Things to Know About COVID-19 Vaccines,” which describes COVID-19 vaccine efficacy, safety and the benefits of being vaccinated;
  • the prohibitions against employers from discharging or discriminating against employees for reporting work-related injuries or illness, exercising their rights under the OSHA Act and the prohibition against retaliating against any employee for filing a workplace safety complaint; and
  • 18 § U.S.C. 1001 and section 17(g) of the OSHA Act which provide criminal penalties for knowingly supplying false statements or documentation.

More than two dozen Republican-led states and private businesses recently filed a lawsuit in the Fifth Circuit Court of Appeals in Louisiana seeking an order that the vaccination or testing rule is unconstitutional and was mandated without authority. There are several other legal challenges pending in other jurisdictions as well.

On Saturday, November 6, 2021, the court entered a temporary stay on the rule, finding that the plaintiff gave “cause to believe there are grave statutory and constitutional issues with the Mandate.” The court asked the government to respond to the stay by 5:00 p.m. on November 8, 2021, which it did. The government argued that stopping the mandate from taking effect will only prolong the pandemic, it will “cost dozens or even hundreds of lives per day,” and that the risks are greater without the mandate than with it.

This series of events is quite similar to those that transpired in 2016, when President Obama mandated a large increase to the overtime rule under the Fair Labor Standards Act. The rule, which was slated to go into effect on December 1, 2016, caused employers nationwide to spend significant time and resources reviewing their exempt and non-exempt employee classifications and making necessary adjustments to comply with the rule. The rule was attacked by the state of Texas as well as numerous other states and business groups. In November 2016, a court that is within the same federal appellate circuit reviewing President Biden’s vaccination mandate, enjoined enforcement of the rule and eventually entered summary judgment for the plaintiffs. The rule was never implemented.

History may repeat itself with President Biden’s vaccination and testing mandate, but there are still many open questions, such as whether any order entered by the court will be enforceable nationwide and as to all businesses covered by the rule.

Given the weighty principles on each side of this issue, it’s difficult to predict what the court will decide at this early stage. Our attorneys expect the court to provide an answer relatively quickly as it has promised to address this issue within a matter of days.

In the meantime, employers should continue to prepare as if the rule will be enforced as originally intended, lest be unprepared for the upcoming December 5th deadlines.

If you have any questions about President Biden’s vaccination or testing rule, the recent court proceedings, or any other employment matter, please reach out to the attorney listed below or the Aronberg Goldgehn attorney with whom you normally consult:

Amy M. Gibson

The above material is intended for general information and promotional purposes and should not be relied on or construed as professional advice. Under the Illinois Rules of Professional Conduct, the above information may be considered advertising material. The transmission of this information is not intended to create, and receipt of it does not create a lawyer-client relationship.

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