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As a federal appellate court on Friday upheld its stay on President Biden’s vaccine-or-test mandate for employers with 100 or more workers, states are using legislative maneuvers to attempt to prevent businesses from implementing COVID-19 vaccine requirements.
A ruling issued Friday by the U.S. Court of Appeals for the 5th Circuit in New Orleans continues its earlier order blocking implementation of the Occupational Safety and Health Administration’s emergency temporary standard. The mandate, which was scheduled to take effect Jan. 4, requires larger employers to mandate employee vaccination or require employees to submit to weekly testing and masking at work.
“The mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degree of susceptibility to the supposedly ‘grave danger’ the mandate purposts to address,” the court wrote in its order.
In asking the appellate court to lift its stay, the Justice Department argued that the rule was grounded in law and necessary to protect workers during the pandemic.
Various groups have filed multiple petitions on the emergency temporary standard in multiple appellate courts. As a result, all petitions will be consolidated and heard before one of the courts via a lottery system, according to NPR. It is expected that the argument on mandates will make its way to the U.S. Supreme Court.
State efforts
At the same time, state lawmakers are hoping to circumvent OSHA’s emergency temporary standard through legislative efforts.
In the past month, lawmakers in Alabama, Arkansas, Iowa, Tennessee and West Virginia passed bills to limit the ability of employers to mandate COVID-19 vaccination, according to JDSupra. Those efforts follow Montana’s passage of a COVID-19 vaccine discrimination law this spring — which was amended to grant exemptions for assisted living and other long-term care facilities — and Texas Gov. Greg Abbott’s executive order in October expanding exemptions to vaccine mandates under state law.
Florida will consider legislation in a special session this week that would restrict vaccine mandates for employers, “making it impossible for providers to be in compliance with both state and federal guidance unless a healthcare exemption is put in place,” according to LeadingAge President and CEO Steve Bahmer.
Similarly, an Oklahoma lawmaker filed a bill to ban vaccine mandates in the state. State Rep. Tom Gann (R-Inola) filed the “Liberty Bill” to end what he calls “shocking abuse” by employers implementing vaccination as a condition of employment.
Illinois, by contrast, passed an amendment limiting the effect of a statute challenging vaccine mandates.
In the midst of the legal turmoil, senior living advocates said they are encouraging providers to be ready to implement COVID-19 vaccination requirements.
