Is your nonprofit subject to a COVID vaccine requirement for its employees? In the last few months, such “mandates” have been issued for “large” employers (i.e., with at least 100 employees), federal contractors, federal employees, and medical workers. Correspondingly, a flurry of litigation has erupted, with dozens of states, businesses, religious organizations, and other nonprofits challenging such mandates on a plethora of constitutional, procedural, and other legal grounds. We reported recently on OSHA’s large employer mandate, and now we provide an update based on a federal court ruling and other important developments – with implications for the OSHA mandate as well as similar employment directives. Key takeaway: watch closely for new legal developments!
OSHA Mandate – On Hold
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an “emergency temporary standard” (ETS) to reduce the risk of COVID-19 (Covid) transmission in the workplace and to protect unvaccinated workers from contracting the virus at work (Vaccine ETS). This Vaccine ETS applies nationwide to employers with 100 or more employees, and it requires swift implementation and enforcement. A mere two days later, the federal Fifth Circuit Court of Appeals issued a temporary injunction, citing “grave statutory and constitutional issues.”
Soon after November 12, 2021, the Fifth Circuit ruled that OSHA has no authority to issue such “sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.” The Court affirmed its prior stay, ordering that “OSHA take no steps to implement or enforce the Mandate until further court order.” In so ruling, the Court criticized OSHA for developing a “one-size-fits-all sledgehammer” instead of crafting protection against grave dangers for the most at-risk workers, as required for an ETS. Indeed, the Vaccine ETS applies to all industries and all workplaces with 100 or more employees without taking into account any of the obvious differences based on working environments or even the existence of COVID in a particular workplace. Also notable, OSHA waited months to enact the ETS, effectively conceding the absence of a requisite “emergency.”
The Fifth Circuit further addressed constitutional challenges to the Vaccine ETS, finding them persuasive. In particular, the Vaccine ETS “likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power.” In addition, significant “concerns over separation of powers principles cast doubt over the Mandate’s assertion of virtually unlimited power to control individual conduct under the guise of a workplace regulation.” The Court then applied the legal standard for a temporary injunction, determining that both employees and employers would be irreparably harmed absent a “stay” (i.e., hold) of the Vaccine ETS, with substantial burdens on employers’ liberty interests, financial implications, and other adverse results including stiff penalties, economic uncertainty, and workplace strife. In short, the Fifth Circuit’s ruling provides quite a sweeping rejection of OSHA’s Vaccine ETS.
Next Steps for OSHA Vaccine Mandate: Sixth Circuit to Hear Case
Following the Fifth Circuit’s ruling, and amid a torrent of lawsuits across the country challenging OSHA’s vaccine mandate, OSHA itself suspended the mandate’s implementation and enforcement through a brief announcement on its website. Additionally, in light of the panoply of court cases pending across in the nation, the federal Judicial Panel on Multidistrict Litigation conducted a lottery to see which federal circuit would take on and consolidate the cases objecting to the Vaccine ETS. The Sixth Circuit Court of Appeals was selected via this new lottery approach. The Sixth Circuit is one of the more conservative federal circuits, so those opposing OSHA’s mandate seem encouraged.
Now we wait to hear of the next steps. The first decision is whether the Sixth Circuit will hear the cases en banc (all non-senior judges) or if they will be assigned to a three-judge panel. A coalition of 27 states plus other petitioners have reportedly asked the court for this en banc hearing. Meanwhile, the Biden Administration filed a court pleading on November 23, 2021, asking that the Fifth Circuit’s stay of the OSHA mandate be lifted.
After the en banc decision has been made, next up will be determining the following steps—among other things, how the cases will be consolidated, whether there will be liaison counsel, whether the Sixth Circuit Court will require new briefing, who the lead parties will be, what facts will therefore become most relevant, and what schedule the court will follow. All such matters take time. And then of course there’s the very distinct possibility of a further challenge onward to the U.S. Supreme Court
Religious Arguments Too?
The Fifth Circuit’s ruling emphatically rejects the OSHA vaccine mandate as legally unsound. Strong and extensive arguments were raised through briefs filed in that case as well as other cases supporting such conclusion, including religious grounds raised by parties such as the Southern Baptist Theological Seminary and Asbury Theological Seminary in a separate Sixth Circuit case (as well as by other religious organizations in an Eleventh Circuit case). Among other things, these religious organizations contend that the OSHA mandate allows for improper government interference with their autonomy in violation of their First Amendment constitutional rights. More specifically, they argue that the mandate violates religious organizations’ “First Amendment . . . right . . . to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine,” through regulating which employees a religious organization may or may not keep.
They further argue that the OSHA mandate would involve unconstitutional “excessive entanglement” with respect to necessary determinations about what is “secular” versus “religious.” Notably, in passing the OSHA Act, Congress recognized that churches and other religious organization present unique problems:
Churches or religious organizations, like charitable and non-profit organizations, are considered employers under the Act where they employ one or more persons in secular activities…Any person, while performing religious services or participating in them in any degree is not regarded as an employer or employee under the Act, notwithstanding the fact that such person may be regarded as an employer or employee for other purposes – for example, giving or receiving remuneration in connection with the performance of religious services.
These religious organizations assert that the OSHA mandate would substantially burden religious organizations by demanding that they comply or face “substantial economic consequences,” as recognized in the U.S. Supreme Court’s 2014 Hobby Lobby ruling. Under such ruling and the accompanying federal Religious Freedom Restoration Act (“RFRA”) legal analysis, a party must assert that the federal government’s action substantially burdens their exercise of religion (whether individually or as an organization). If this threshold is satisfied, the government must then prove that it has a compelling government interest and that the burden is the least restrictive means of achieving that interest. A key legal question with respect to the OSHA mandate is whether it is indeed the “least restrictive means” for achieving the government’s public health goals. Under RFRA, a court many consider financial costs, operational burdens, and other practical aspects (e.g., why the mandate applies to employers with 100 employees versus employers with other numbers of employees, why natural immunity is not considered as relevant, efficacy of other measures such as keeping sick employees home, available scientific information).
Other Vaccine Mandates (and Anti-Mandates)
In addition to OSHA mandate litigation, numerous states, businesses, nonprofits, and other employers have filed lawsuits objecting to similar emergency vaccine mandates. Most notably, a mandate was issued by the Centers for Medicare and Medicaid Services (“CMS”), requiring vaccination of staff at heath care facilities that participate in Medicare or Medicaid. Additionally, a vaccine mandate was issued for all federal contractors through the Biden Administration’s Safer Federal Workforce Task Force, with compliance now required by January 18, 2022. Many of the legal arguments to the OSHA mandate apply equally to the CMS and federal contractor mandates, such as procedural issues with their emergency promulgation, religious issues, and RFRA-type “burden” and “least restrictive means.” Consequently, all pending litigation is worth watching, as the arguments from one case may well influence the outcome in another case.
Notably too, some states have resisted federal mandates through measures other than litigation. For example, the governor of Florida and the Florida legislature took things a step further on November 18th, with a new law specifically prohibiting (1) private employers, government agencies, and educational institutions from mandating Covid vaccines; (2) school districts from implementing face mask policies; and (3) school districts from quarantining healthy students. These COVID-related efforts reflect yet another dimension of federal-state dynamics, raising questions of state government autonomy versus federal government power.
As if the groundswell of litigation opposing all COVID vaccine mandates weren’t enough, courts are also inundated with religious, medical, and other objections raised by individual employees, schools, and others to various vaccine mandates imposed through non-government means. What will happen next? Many employers and employees alike are waiting and watching for further court rulings, with some employers readying new COVID policies. Many employees are following up with COVID initial shots and boosters, while others are pursuing exemption requests. As with all things COVID, the landscape continues to shift rapidly and to warrant close attention.
 See Our Lady of Guadalupe Sch. V. Morrissey-Berru, 140 S.Ct. 2049, 2055, 2060 (2020) (courts are particularly careful about protecting “internal management decisions that are essential to the institution’s central mission”); see also Garrick v. Moody Bible Inst., 494 F.Supp.3d 570, 576 (N.D. Ill. 2020) (citing Korte v. Sebelius, 735 F.3d 654, 677 (7th Cir. 2013) (“courts ‘respect the authority of churches to select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions”).
 29 C.F.R. § 1975.4(c)(1). Neither the OSH Act nor its accompanying regulations define the terms “secular activities” and “religious services.” But as the U.S. Supreme Court has recognized, “trolling through a person or institution’s religious beliefs” by governmental entities is constitutionally impermissible. Mitchell v. Helms, 520 U.S. 793, 828 (2000). See also Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1261 (10th Cir. 2008) and NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 504 (1979), which find that permitting such inquiry of a religious institution by the government constitutes “excessive entanglement” between church and state.