Vaccine Mandate Legal Challenges Muddy the Waters for Employers Preparing to Implement Rules

The deadline for requiring U.S. workers to be vaccinated or tested weekly for Covid-19 is fast approaching, but uncertainty about how legal fights over the mandate will play out has left companies in limbo on how best to prepare.

Those tasked with making sure their companies comply with the Biden administration mandate will need to remain flexible as they take steps to implement rules set to take effect Jan. 4, legal and human resource experts say.

The rules issued by the Occupational Safety and Health Administration require private-sector employers with 100 or more workers to ensure their employees get fully vaccinated or take a weekly Covid-19 test and wear a mask at work. OSHA can issue fines against companies for noncompliance. The OSHA emergency temporary standard can stay in place for six months before it would need to be codified as a permanent standard that requires rule making.

The Fifth U.S. Circuit Court of Appeals in New Orleans earlier this month granted an emergency stay prohibiting enforcement of the rules for now, saying they raised “grave statutory and constitutional issues.” The Sixth U.S. Circuit Court of Appeals in Cincinnati was randomly selected on Nov. 17 to take on legal challenges to the mandate, and on Tuesday the Biden administration filed an emergency court motion seeking the immediate reinstatement of the mandate.