Yes Virginia, Omicron really is suddenly a whopping 73% of US COVID-19 infections!
With the astonishing spread of Omicron over the past week to become the dominant US variant, vaccine mandates have accrued major importance. On Friday, December 17, the US Sixth Circuit Court of Appeals in Cincinnati upheld the validity of the vaccine mandates for businesses created by OSHA. This ruling allows OSHA to start enforcing the mandates.
Naturally, the ruling was surrounded by controversy, a flurry of lawsuits and has already been appealed to the Supreme Court.
The Omicron Factor
Society is facing a serious challenge with the rapid spread of the Omicron variant and the high risk engendered by the holiday season. Vaccination has proven the only way to decrease the spread of COVID-19 and diminish the mortality of the disease.
Businesses need to consider all the issues in addition to the legal ramifications if they want to keep their employees safe and protect their productivity. Many large corporations including Netflix, Google, Tyson’s Foods, Disney, and others have imposed their own mandates. Public opinion appears to support the mandates as well. If the national mandates are struck down, more companies would just create internal mandates to keep their own workers safe, especially those in high-risk situations. Legally, the mandates do have basis.
There is plenty more evidence that mandates are here to stay in some form. Enough people have noted that vaccines protect individuals in society from dying from COVID-19 infection. When vaccine mandates are implemented in certain areas such as the New York City Municipal workers or the Boeing factories, they have been successful at increasing vaccination rates to over 90%. Employees have very varied opinions but many will demand protection from their employers from any workplace hazard including COVID-19. Mandates will never prevent lawsuits but they may assist in corporate legal defense. Over 4000 lawsuits have already been filed against employers and there appears no evidence that this trend will diminish.
How We Got Here
The lawsuits were created as a reaction to the Emergency Temporary Standards (ETS) created by OSHA addressing businesses with more than 100 employees. The ETS requires mandatory vaccination or weekly testing for all workers in these larger businesses. Separate standards for mandatory vaccination were created for federal contractors and businesses receiving funds from the Centers for Medicare and Medicaid. The latter two mandates did not offer the option of weekly testing as an alternative to vaccination.
The court case for businesses with over 100 employees had been placed in the Cincinnati court following the consolidation of lawsuits from 27 states challenging the mandate. One of the tense cases emerged from the Fifth Circuit Court of Appeals in New Orleans where enforcement of the mandates was struck down in that court.
The Supreme Court is expected to rule on whether to uphold or reverse the decision of the Sixth Court in the next few weeks. Some legal experts think it could be as soon as two weeks. Heated arguments for and against the mandates have ensued, since they were first announced.
What’s at Stake
Those championing the mandates cite the power of OSHA to create these standards for the extraordinary circumstances of the pandemic. Historically, OSHA has the authority to respond to certain dangers to protect workers. Some people claim the court also has a responsibility to public safety, but this sentiment is not a legal argument and is not expected to be part of the next ruling.
The counterarguments can be equally compelling. In court proceedings, OSHA never demonstrated that the workplace was a major site of transmission for any COVID-19 cases. OSHA also did not give data that mandatory vaccination or testing would decrease this risk.
The businesses and organizations contesting the OSHA ETS also give economic arguments against the standards, by citing the cost of implementing these vaccines or performing testing. These plaintiffs also cite that there is already a labor shortage and many workers may quit in response to the mandate.
Businesses Can Expect Mandates Regardless of the Ruling
Twenty-five states require vaccination for some types of employees. New York State actually has mandatory vaccination rules for all employees, not just for those with 100 or more employees. Other vaccine mandates could result from the other two types of employees where OSHA is imposing rules. The vaccine for federal contractors was negated by a Georgia court but that awaits appeal and the mandate for health care workers receiving CMS funds was similarly negated by a Louisiana court.
Moreover, 22 states have OSHA state plans which could create very similar rules around vaccination and testing if the Supreme Court reversed the decision of the Cincinnati court.