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High court blocks vaccine order for private businesses

By R. Scott Nolen
Published on December 09, 2021

Updated February 2, 2022

The U.S. Supreme Court has blocked enforcement of an executive order requiring private sector employers with 100 or more employees to test or vaccinate their workforce for COVID-19.

Issued Jan. 13, the court’s 6-3 decision grants an emergency stay of the Occupational Safety and Health Administration’s emergency temporary standard for COVID-19 vaccination, pending the outcome of a challenge in the U.S. Court of Appeals for the Sixth Circuit.

The majority said the emergency temporary standard “operates as a blunt instrument” in that it “draws no distinctions based on industry or risk of exposure to COVID-19.”

Healthcare professional preparing a COVID-19 vaccine syringe

In a separate decision, the court justices sided 5-4 with the Biden administration over its order for federal employees to be vaccinated for the coronavirus. However, a federal judge in Texas on Jan. 14 issued an injunction against the mandate, which would require health care workers at facilities receive federal funding to be vaccinated.

Should the mandate for private sector employees prevail in court, the number of veterinarians, veterinary technicians, and clinic staff members that fall within the regulation’s parameters is unclear.

A spokesperson for Mars Veterinary Health, owner of Banfield, BluePearl, and VCA veterinary hospitals, said the company “is still evaluating this new requirement and the legal challenges that it has presented.”

On Nov. 5, 2021, the Occupational Safety and Health Administration issued its emergency temporary standard for COVID-19 vaccination as part of President Joe Biden’s comprehensive national strategy for addressing the coronavirus pandemic.

The mandate directs businesses with 100 or more employees to comply with several requirements, such as implementing a mandatory COVID-19 vaccination policy, requiring all unvaccinated employees to be tested weekly, and retaining records of employee vaccination status.

While some supported the rule, more than two dozen states, business associations, and religious organizations sued to block the regulation from taking effect, calling the measure an unconstitutional overreach of government authority.

On Nov. 12, 2021, the U.S. Court of Appeals for the Fifth Circuit, based in New Orleans, found for the litigants and ordered OSHA to take no steps to implement or enforce the mandate pending a court order.

The mandate then went before the U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati, and a panel of judges there lifted the stay on Dec. 17, 2021.

As labor attorney James Paretti Jr., explained during a Nov. 19, 2021, webinar hosted by the National Federation of Independent Businesses, the mandate could be reinstated in the future.

“It’s probably best to plan for compliance today,” Paretti said. “If you already have vaccine and testing policies, review them. If you don’t have policies, look at adopting them. And prepare for logistical challenges of testing.”

This story was updated to reflect the U.S. Supreme Court ruling regarding the COVID-19 vaccination mandate.

Get more information about the OSHA vaccine mandate.