John Vecchione

Wednesday’s announcement from the Department of Labor’s Occupational Safety and Health Administration that it is suspending enforcement of its COVID-19 vaccination and testing emergency temporary standard for the time being is drawing scrutiny from legal experts.

OSHA’s statement came after a Nov. 12 decision by the U.S. Court of Appeals for the 5th Circuit granting a motion to stay the agency’s standard “until further court order.” The mandate has raised legal concerns from dozens of states and businesses across the country, with lawsuits filed in virtually all of the U.S. circuit courts. The lawsuits now have been combined into a single case before the Court of Appeals for the 6th Circuit.

“That circuit was chosen by a ping-pong ball lottery process to hear a consolidation of at least 34 legal challenges to the ETS from across the country,” Keith Wilkes, labor and employment partner/shareholder at the national law firm Hall Estil, told the McKnight’s Business Daily.

John Vecchione, senior litigation counsel for the New Civil Liberties Alliance, said, however, that that it’s fine that individual businesses, such as senior living and care facilities where workers are exposed to elderly and immunocompromised residents, want to require workers to be vaccinated, but that a federal mandate goes too far.

“If a private employer is issuing it [the mandate], that is one thing …Healthcare workers obviously run into people who are immunocompromised more often than other folks. Those cases are different,” Vecchione said.

The organization is not anti-vaccination, he said, but it’s position “has to do with what the constitution allows that particular institution or political branch to do these things.”

“We’re concerned with whether the agency which is supporting this is doing this lawfully,” Vecchione added. 

States have more authority than the federal government in matters of public health, he maintained. For example, he said, states can require certain vaccinations before students begin school, and also can require that infected people quarantine.

“I think that states, at least in the cases I’ve seen, tend to win more,” Vecchione said. “State legislatures have a lot more control.” 

Wilkes recommended that employers covered by the OSHA standard stay abreast of its legal status.

“If the mandate comes out of the federal appellate court process intact, you can count on OSHA immediately lifting its suspension, establishing new deadlines and giving employers a whole lot to do in an anticipated short amount of time,” he said.