In September, the State of Arizona sued President Biden to stop his vaccination mandate for private employers. Since then, several other states have threatened to sue to stop the mandate. But, no one knows yet what exactly the OSHA Emergency Temporary Standard is going to say. So, other lawsuits against the private employer ETS have not yet followed.
However, an Executive Order requires that employees of certain federal contractors get vaccinated by early December. And that has prompted 19 states to file 4 separate lawsuits against President Biden and others to block the EO.
Texas filed this one. Alaska, Arkansas, Iowa, Missouri, Montana, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming filed another in Missouri. Georgia, Alabama, Idaho, Kansas, South Carolina, Utah, and West Virginia filed this in Georgia. And Florida filed this lawsuit separately in Florida.
Under the Executive Order, covered contractors must ensure that all full-time or part-time employees working on or in connection with a covered contract (including fully remote workers) or working at a covered contractor workplace are fully vaccinated for COVID-19 by December 8, 2021, unless the employee is legally entitled to an accommodation.
The plaintiffs in the four lawsuits believe that the Executive Order violates federal law. The arguments range from general overbreadth to infringing on state laws concerning COVID-19 to procedural defects like not providing a comment period on the Executive Orders.
Will any of these lawsuits succeed? Perhaps.
Either way, with the OSHA ETS seeming due out this week, pressure is mounting on the Biden Administration over vaccine mandates generally. So, what should your business do?
I’ve entertained a constant flow of questions from readers and clients. My general response is … wait for it.
No, that’s it.
As it relates to the OSHA ETS, my response is to wait for it. We don’t know exactly what it will say. So, why guess? Sure, if your business wants to require vaccinations irrespective of any federal mandate, then go ahead. (Well, except in Montana and, perhaps, Texas, Florida, or Iowa.)
Different story if you are a covered federal contractor. All, some, or none of these pending lawsuits may succeed. Conceivably, one of the judges enters a nationwide injunction. Otherwise, we don’t know how the outcome of these lawsuits may impact federal contractors in other states like Pennsylvania and New Jersey, which aren’t parties. So, for now, consider preparing as if the EO will apply.