Legal Challenges & Private Sector Vaccine Mandates: Hurry Up and Wait

December 14, 2021

By Robert Yeakel, Director of Government Relations

The legal challenges to the Biden administration’s private sector employer vaccine-or-test mandate have been consolidated as BST Holdings, LLC, et al v. OSHA, et al and are now before the 6th Circuit Court of Appeals. Following the 5th Circuit’s ruling in November affirming a stay of the Emergency Temporary Standard (ETS) – and preventing OSHA from implementing or enforcing the mandate – the 6th Circuit is poised to issue their ruling any day now. but the Supreme Court will likely take up additional challenges following the circuit court’s ruling, regardless of outcome. There is a good chance that the OSHA mandate will not be enforced until the Supreme Court takes up the case and makes a final ruling, which could take until late January at the earliest.

While employers with 100-or-more employees should prepare for possible scenarios: the stay is overturned and OSHA begins enforcing the mandate, the Supreme Court declines to hear the case, or the high court decides that the mandate is constitutional sometime in early 2022, the ETS itself expires on May 4th. OSHA promulgated the temporary standard under its emergency authority, so the current mandate can only be in place for a maximum of six months. OSHA would need to issue a permanent standard this Spring and provide employers with a new enforcement timeline in advance of a permanent rule going into effect.

The current legal challenges enjoining the Biden administration’s private sector vaccine mandates – large employers, healthcare workers, and federal contractors – have led many states to impose their own mandates for certain industries and sectors of workers. Since the early fall, roughly 25 states have implemented vaccine mandates for healthcare or public sector employees, and the Supreme Court so far has given states wide latitude to enact these requirements. Just yesterday, the Court refused to hear challenges to New York State’s mandate on healthcare employees, following similar refusals to challenges of both Indiana and Maine’s mandates.

In the opposite direction, 11 states have implemented bans on private sector vaccine mandates, with more likely to take action. Montana led the way last May when its legislature banned private sector discrimination based on vaccine status. And West Virginia became the latest state to preclude private sector employers from enforcing vaccination requirements on their workforces.

If the Supreme Court does block federal OSHA’s vaccine mandates but continues to give states the freedom to pursue their own vaccine requirements or private sector prohibitions, we should expect to see new approaches on an ad hoc basis. Delegating this authority to the individual states may be a prudent solution, but this path forward will likely spell headaches for businesses with footprints in various states.

Keeping track of these different – and in some cases contradictory – local, state, and federal vaccine requirements is no small feat, especially as rules are still in flux and continue to change. Luckily more resources like this state level tracker are becoming available to assist independents and other industries. NGA will also continue to provide information and updates to our members on federal vaccine mandates as the court proceedings play out.

If you have any questions regarding OSHA, vaccine or testing requirements, or other issues related to labor and employment, please contact ryeakel@nationalgrocers.org.