By two to one, the U.S. Court of Appeals for the 6th Circuit on Friday lifted a hold on the Biden administration's vaccine mandate for large employers — nullifying stays granted by the 5th Circuit, including one filed by the National Retail Federation and others last month, and pulling apart the arguments that had won over that court.
The Occupational Safety and Health Administration has restarted implementation of the regulations, which require companies with 100 or more employees to provide time off for vaccinations, verify immunization status, or require masks and weekly testing for employees who can't or won't be vaccinated. But enforcement and some deadlines are delayed to enable employers to catch up and comply, OSHA said.
The Supreme Court is likely to have the last word, however. A group of religious organizations on Sunday said they have filed an emergency stay application with the high court on First Amendment grounds. The NRF by email Friday said it is also mulling a further challenge.
In its opinion released Friday, the 6th Circuit tore apart arguments put forth by the NRF and others, including the idea that the pandemic isn't a workplace issue, or that OSHA's mandate doesn't include prevention of highly communicable diseases in the workplace.
"The record establishes that COVID-19 has continued to spread, mutate, kill, and block the safe return of American workers to their jobs," Judge Jane Stranch wrote. "To protect workers, OSHA can and must be able to respond to dangers as they evolve."
The court also agreed with OSHA's conclusion that as more employees returned to work after last year's lockdowns, the "rapid rise to predominance of the Delta variant" led to "increases in infectiousness and transmission" and "potentially more severe health effects," as well as OSHA's contention that its previous nonregulatory efforts had proven "inadequate."
Evan Armstrong, vice president of workforce at the Retail Industry Leaders Association, hailed OSHA's flexibility in implementing the regulation but said that "Leading retailers are focused on designing and implementing the processes needed to comply with the ETS vaccine and testing rules."
Speculation has now begun about the vaccine mandate's chances with the Supreme Court, and legal experts don't agree. Keith Wilkes, a labor and employment partner at law firm Hall Estill, said that the 6th Circuit's opinion "definitely moves the odds in favor of the OSHA [Emergency Temporary Standard rule] prevailing."
"The Sixth Circuit Opinion shreds the legal arguments of the Petitioners, as well as the analysis and conclusions made by its sister circuit — the Fifth Circuit — last month when it stayed the ETS," Wilkes said by email Monday.
But Jonathan Hyman, an attorney at law firm Wickens Herzer Panza who specializes in management-side labor and employment law, said, "With the current composition of SCOTUS, I don't hold out a lot of hope that the ETS will ultimately survive."
Plus, with COVID-19 cases once again taxing hospitals and the omicron variant spreading rapidly in some areas, the rule may have to be tweaked by OSHA itself, and not just the courts, according to Hyman.
"I'll also add that with the foreboding Omicron news, which includes the educated belief that the current definition of 'fully vaccinated' doesn't offer much protection against the variant, the ETS won't mean anything unless and until the CDC changes the definition of fully vaccinated to include boosters," he said by email.
The uncertainty around the ultimate fate of the vaccine mandate continues as the U.S. is anticipating holiday-related surges in cases and hospitalizations. As the pandemic and its variants are pushed back to the top of the news, consumers are growing more wary. While a great majority (71%) agreed to some extent that return to a pre-pandemic normal may be impossible, that doesn't mean they're at ease, according to research from Numerator. Comfort with shopping in stores without a mask is down again, according to that report.
Global job search engine Adzuna also found that the omicron variant is slowing retail hiring, with a 26% drop in ads for jobs the week of Dec. 6 that is much steeper than what is usually seen at this point in the season.