Court Lottery Could Determine Fate of COVID Vaccine Mandate

November 16, 2021

The Biden administration may have a chance to revive its workplace COVID-19 vaccine rule that was blocked last week by the U.S. 5th Circuit Court of Appeals.

More than a dozen lawsuits filed around the country challenging the rule—which requires employers with at least 100 workers to mandate COVID-19 vaccination or weekly testing combined with wearing a face covering at work—are expected to be consolidated in a single federal appeals court chosen through a lottery.

Under federal law, each U.S. Circuit Court that's received a case will get one entry in the lottery. The entries will be placed in a drum. A clerk at the Washington, D.C., Judicial Panel on Multidistrict Litigation will randomly draw one. It’s expected the Biden administration will ask the court that winds up being randomly selected to review the 5th Circuit's decision. In blocking the rule, the three-judge panel of the appeals court in New Orleans called it a "one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces."

On Nov. 4, the Occupational Safety and Health Administration (OSHA) on issued a Vaccine Emergency Temporary Standard (ETS) to establish COVID-19 vaccination, verification and workplace testing requirements for employers with over 100 employees.

The rule requires employers to ensure each of their workers is fully vaccinated or tests for COVID-19 on at least a weekly basis.

According to the rule, “covered employers” must:

  • All covered employers must ensure by Jan. 4, 2022, that their employees have received the necessary shots to be fully vaccinated—either two doses of Pfizer or Moderna, or one dose of Johnson & Johnson. After that, all covered employers must ensure that any employees who have not received the necessary shots begin producing a verified negative test to their employer on at least a weekly basis, and they must remove from the workplace any employee who receives a positive COVID-19 test or is diagnosed with COVID-19 by a licensed health care provider. The ETS lays out the wide variety of tests that comply with the standard. Given that vaccines are safe, free, and the most effective way for workers to be protected from COVID-19 transmission at work, the ETS does not require employers to provide or pay for tests. Employers may be required to pay for testing because of other laws or collective bargaining agreements.
  • All covered employers are required to provide paid time off for their employees to get vaccinated and, if needed, sick leave to recover from side effects experienced that keep them from working.
  • All covered employers must ensure that unvaccinated employees wear a face mask while in the workplace.
  • Employers are subject to requirements for reporting and recordkeeping that are spelled out in the detailed OSHA materials available here. While the testing requirement for unvaccinated workers will begin after Jan. 4, employers must be in compliance with all other requirements—such as providing paid-time for employees to get vaccinated and masking for unvaccinated workers—on Dec. 5.

The 100-employee threshold includes all an employer’s operations—not the number of employees at one office. In addition, separate legal entities can be treated as a single employer for this purpose if they handle safety matters collectively.

Part-time employees count equally as full-time employees. There is no calculation of full-time equivalents (FTEs). However, independent contractors aren’t counted.

If an employer has 100 or more employees on any day during the effective period of the ETS, then the employer remains subject to the ETS as long as it remains in effect. A subsequent decline in headcount does not remove the employer from coverage.

The OSHA requirements do not apply to employees:

  • who do not report to a workplace where other individuals, such as coworkers or customers, are present
  • while working from home
  • who work exclusively outdoors

Contact ALTA at 202-296-3671 or [email protected].