December 21, 2021
On Friday, December 17, 2021, the Sixth Circuit Court of Appeals reversed a lower court’s block on President Biden’s vaccine mandate, meaning the vaccine mandate will go into effect on January 4, 2022.
The vaccine mandate requires that all private employers who employ 100 or more employees nationwide must require their employees to be vaccinated or submit to weekly testing and mandatory masking, though there are exceptions for those who work from home or exclusively outdoors. In November, the Fifth Circuit Court of Appeals issued a stay, blocking the vaccine mandate, while other challenges to the mandate persisted throughout the country. After the Fifth Circuit’s stay, all mandate challenges were consolidated to the Sixth Circuit, permitting it to rule on all litigation nationwide, and thus giving it the authority for Friday’s decision.
In its opinion, the Sixth Circuit held that “[t]he record establishes that COVID-19 has continued to spread, mutate, kill, and block the safe return of American workers to their jobs. To protect workers, OSHA can and must be able to respond to dangers as they evolve.”
Immediately following the Sixth Circuit’s opinion permitting the vaccine mandate, challengers filed motions with the U.S. Supreme Court, hoping to get a final say on the issue. The mandate is set to take effect on January 4, 2022, so any litigation will need to be expedited. It is important to note that, while the Supreme Court leans conservative, it refused to block a New York state vaccine mandate for healthcare workers less than a week before the Sixth Circuit’s ruling (We the Patriots USA, Inc. v. Hochul, Dkt. No. 21A125, Dec. 13, 2021).
Where the Sixth Circuit panel only consisted of a three-judge panel, opponents of the mandate may also file an appeal to the full Sixth Circuit requesting all 16 circuit judges to hear the case and issue an opinion.
What does this mean for Utah employers? With two weeks remaining until the mandate’s scheduled implementation, things are expected to move very quickly. For now, employers should be preparing to implement the vaccine mandate’s requirements in the event the challenges to the mandate are not successful. Under the federal mandate, employers must retain proof of vaccination for each employee. Additionally, once the federal mandate goes into effect, employers must provide a reasonable amount of time (up to four hours paid time) for each employee to receive their primary vaccination dose(s) and paid sick time for employees who suffer side effects from the dose(s).
Employers should also have a vaccine mandate-related policy that permits exceptions for those who work at home, work exclusively outdoors, who have a disability for which the vaccine is contra-indicated, or who have a sincerely held religious belief against receiving the vaccine.
It is important to note that if the federal mandate is upheld by the Supreme Court, it would preempt Utah’s recently-enacted S.B. 2004, which permits employees to object to the vaccine requirement under the same exemptions as the federal mandate, but also due to a “sincerely held personal belief.” Employers would be required to adhere to the federal mandate.
Again, this rule only applies to employers with 100 or more employees. While the mandate takes effect on January 4, the U.S. Department of Labor announced Saturday that it would not issue citations for noncompliance with any requirements until January 10, 2022, and will not issue any citations for noncompliance with testing requirements until February 9, 2022, allowing a ramp-up period for employers to implement the requirements. However, employers should work quickly to get into compliance or risk penalties.