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Biden Bails on Requiring Vaccines for Employees at Large Businesses

January 25, 2022

Yesterday, the Biden Administration announced it was withdrawing its emergency requirement that most workers at large U.S. businesses be vaccinated or be masked and regularly tested for COVID-19.  This move comes one week after the Supreme Court blocked the enforcement of OSHA’s emergency order on this matter.  OSHA, the federal agency in charge of regulating workplace safety, had originally initiated the emergency order and is now left to consider whether to reintroduce a similar mandate on a non-emergency basis.  Legal scholars believe this approach would have a better chance of surviving another legal challenge.  Initially, OSHA had used its emergency authority to avoid the standard protracted comment and rulemaking process, having argued the impact of the pandemic met the required standard of a “grave danger” which permitted the expedited process.

In its statement following the Administration’s withdrawal of the emergency order, OSHA said, “The agency is prioritizing its resources to focus on finalizing a permanent COVID-19 Healthcare Standard.”  Without detailing what this new standard will be, many followers believe some version of a mask or vax mandate will be included.

Our readers will recall, the original emergency order had applied to only large businesses with at least 100 employees; a number who many, including the Supreme Court, thought was arbitrary and warrantless.  The emergency order was challenged by several advocacy groups, large businesses and GOP-led states before the Supreme Court ultimately staying its implementation and remanding it to the U.S. Court of Appeals.

In delivering its opinion, the Supreme Court noted opponents of the emergency order would likely win if their challenge received a full hearing. Additionally, the majority of the Court said Congress hadn’t granted OSHA the broad, sweeping authority to impose such a mandate.  However, the Court did confirm OSHA has the authority to craft a more targeted workplace rule.

Brody and Associates will keep our readers posted on this matter as further developments warrant.

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.