November 8, 2021
Last Friday, we sent out an alert that the Biden Administration’s Emergency Temporary Standard (“ETS”) on the vaccine mandate was issued, and large employers would have until Jan 4, 2022, to fully comply. As expected, as soon as the new rule was released, five states, Texas, Louisiana, South Carolina, Mississippi and Utah, along with several large employers and labor organizations filed lawsuits to challenge the constitutionality of the mandate. In response to their petition, the Fifth Circuit Court of Appeals (which covers Louisiana, Mississippi, and Texas) granted a temporary emergency stay, stating that “Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is stayed pending further action by this court.”
WHAT’S NEXT?
The Fifth Circuit’s stay orders the federal government not to enforce the mandate until further action by the court. So what does this mean? Employers wait to see what happens next and the lawyers involved scramble. The government was ordered to reply by 5pm this afternoon. White House Chief of Staff Ronald Klain believes the challenge over the mandate will be resolved before January 3, and ultimately will be upheld by the Supreme Court of the United States. If he’s correct, the vaccine/testing part of the mandate will happen as scheduled (January 4, 2022).
WHO IS BOUND BY THIS STAY?
Normally, the precedential effect of a circuit court’s order is only binding on the states located within the circuit, and other circuits do not have to follow its lead. However, the language in the Fifth Circuit’s opinion was such that it could have a broader application, as it is a constitutional question. Additionally, as the majority of the states (at least 27 states so far as reported by NPR) are filing lawsuits against the Government’s mandate, the Fifth Circuit’s opinion could have a national effect. At this point, we suspect this is what will happen.
CAN YOU STILL REQUIRE YOUR EMPLOYEES TO GET VACCINATED EVEN THOUGH THE FEDERAL MANDATE IS STAYED?
Yes, regardless of your company’s size, you can require an employee to get vaccinated unless he/she is due a religious or disability-based accommodation. You can also choose not to do this. At this point, it is still totally up to you.
We expect this case to move very quickly. If you have 100 or more employees, keep listening for what’s next. Your future freedom of choice on this topic remains unresolved.
The subject matter of COVID-19 posts is often very technical. It is also an evolving area of science and law and very fact specific. Our goal here is to simply alert you to some of the key issues involved. We urge you to seek competent legal counsel before applying these ideas to your specific situation. Since March 2020, we have had a team of attorneys focusing on COVID-19 related developments and they continue to stand ready to help you with any issues involving the pandemic.
