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Should Employers Abide By Biden Vaccine Mandate Despite Court Challenges?  

The White House and legal experts are offering the same advice for employers wondering what to do about President Joe Biden’s vaccine and testing mandate despite a recent appeals court-ordered pause and several state lawsuits: move ahead in following the requirements.

COVID Vaccine.jpeg“People should not wait,” White House Deputy Press Secretary Karine Jean-Pierre told reporters during a briefing earlier this month, CNBC reports. “They should continue to move forward and make sure they’re getting their workplace vaccinated.”

The U.S. Court of Appeals for the 5th Circuit on November 6 put the order on hold, noting that “the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.” That court is considered one of the most conservative appeals courts nationwide.

The vaccine and testing mandate also faces challenges by Republican attorneys generals in several states including Texas, Louisiana, Mississippi, South Carolina and Utah and some companies that have asked that it be halted. Their argument is that the Occupational Safety and Health Administration (OSHA) will exceed its authority should the mandate go through.

The Biden administration fought back, asking the court to end the pause and calling states’ and companies’ concerns “premature” since the deadline for the mandate does not take effect until January 4. By that date, companies that employ 100 or more need to make sure their workers are fully vaccinated against COVID-19, and those not vaccinated by then will need to turn in a negative test every week and start wearing masks beginning December 5.

OSHA released its emergency temporary standard--the one halted by the appeals court--on November 5, reports the Society for Human Resource Management. Andrew Metcalf and Stephen Woods, attorneys with Ogletree Deakins in St. Louis and Greenville, S.C., respectively, acknowledge that “the future of the ETS remains uncertain due to pending legal challenges.”

“While the final result is unknown, it will take weeks of planning for employers to comply with the ETS's deadlines," they say. “Accordingly, employers may want to continue preparing for the ETS as if it is going to take effect while litigation continues.”

The advice from Metcalf and Woods was echoed by Fisher Phillips’ attorneys, who note that “we advise employers to spend the coming weeks preparing for the ETS as if it will take effect but waiting to implement its measures until the final judicial outcome is certain.”

OSHA, which is under the U.S. Department of Labor, has given employers clear notice on where it stands and how it plans to act once the mandate deadline is here. "The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them," says Seema Nanda, the DOL's chief legal officer. "We are fully prepared to defend this standard in court."

OSHA anticipates that more than 75 million workers, almost 90% of those who fall under the regulation, will be vaccinated by the requirement deadline, Politico reports. And while Biden wants unvaccinated employees who choose not to get vaccinated to pay for testing, labor law experts note employers will likely pay for those costs for workers who claim religious or disability exemptions.

“I think employers will be hard-pressed to push the cost on to employees who fall properly within those exemptions,” Carleton Schaefer, chair of Loeb and Loeb’s employment and labor practice, says of the COVID-19 testing costs.

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