November 2021 – Law Offices of Cynthia A. Augello, P.C

In a follow up to recent decisions handed down in the federal courts regarding the legality of vaccine mandates affecting Federal, and OSHA covered employers, OSHA has announced that it has suspended enforcement of the mandates for large employers to require vaccinations for all employees or undergo weekly testing. The decision is based on the likelihood that the 6^th circuit will follow the 5^th circuit’s lead and come down against the mandate. The 5^th circuit court of appeals cited “grave statutory and constitutional issues” as the reasoning behind its opposition to the mandate. As the judiciary in the 6^th circuit is composed of mainly conservative judges it is highly likely that the 6^th circuit will concur with the 5^th circuit and find that the mandate is overreaching. The stay of the OSHA rule also calls into question the previously enacted deadline for compliance, with December 5, 2021, being the final date for businesses to decide whether to choose vaccination or weekly testing, and January 4, 2022, as the date by which the rule must be implemented.

As the rule is rapidly being adjusted and even faces the possibility of being permanently halted, it is very important for employers to keep themselves informed on the validity of law and its applicability to their workplace. Legal and regulatory consequences are not the only concern as vaccine implementation, or the alternative of mandatory weekly testing may create instances of large expenditures on the part of an employer.

If you or your H.R. department have any questions concerning how to best implement and enforce guidelines and protocols associated with these updated vaccination mandates, please do not hesitate to call us at 516-888-1208 or email Cynthia Augello at [email protected]

Thank you to Joel Thomas, JD for his assistance with this post.

Now that OSHA has mandated that all employees of large employers (100 or more employees), there have been numerous challenges to the temporary emergency standard. The 6^th Circuit Court of Appeals has taken up all the existing challenges to the vaccine mandate policy. In total, challenges to the vaccine mandates have appeared in 12 circuit courts throughout the federal court system. Through the Judicial Panel on Multidistrict Litigation, the challenges have been consolidated into a proceeding in the 6^th Circuit. The challenges were brought by a variety of different parties and organizations, not all of whom are even opposed to vaccine mandates.

Some organizations, including unions, challenged the mandates as not offering enough protection for employees. Most parties who brought the challenge, however, are employers, conservative organizations, business organizations, and officials on behalf of 27 Republican led states. Although it is unclear whether the 6^th Circuit will hold as the 5^th circuit did and side with challengers of the mandate, the largely conservative majority in the federal judiciary indicates that the court will likely come out in favor of the plaintiffs in this case. As it pertains to OSHA emergency rules, historical precedent tells us that OSHA has issued 10 rules in the 50 years of its existence. Of the 6 rules that faced court challenges, only 1 withstood the challenge.

As implementation of the vaccine mandate is an ongoing and undecided area of regulation, it is important for employers to keep informed on the status of the mandate as it pertains to their workplace, and whether the policy is still in effect. This is the only way in which employers can ensure compliance with the mandate and thus prevent any issues with the operation of their business. Employers must be informed of the day-to-day applicability of this mandate in their specific state or jurisdiction.

If you or your H.R. department have any questions concerning the status of the vaccination mandates, please do not hesitate to call us at 516-888-1208 or email Cynthia Augello at [email protected]

Thank you to Joel Thomas, JD for his assistance with this post.

OSHA Suspends Vaccine Mandate

Challenges to the Vaccine Mandate: Off to the 6th Circuit we go!

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Archive for month: November, 2021

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