I’ve had a ton of questions about the status of the various federal COVID-19 vaccine mandates (OSHA, federal contractors, CMS). In this post I’ll explain (1) the status of these mandates; and (2) strategies for filing medical/religious exemptions. If you have questions on mandates or exemptions, comment and I’ll do my best to answer. The Federal COVID-19 Vaccine Mandates The OSHA Mandate On November 5, OSHA published its emergency temporary standard (ETS) requiring private employers with over 100 employees to “develop, implement, and enforce a mandatory COVID-19 vaccination policy.” The OSHA Mandate had an exception that employers could also adopt a policy requiring employees “to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.” However, the employees were to bear the costs of COVID-19 testing. OSHA predicted the costs of compliance (another term for coercion) would cause more employees to be vaccinated. A number of lawsuits were filed across the nation once the OSHA Mandate was published. The Fifth Circuit court of appeals issued a stay of the OSHA Mandate on November 12, stating:
As stated by the Fifth Circuit, the OSHA Mandate “runs afoul from the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our liberty.” This stay is still in place, despite the collective OSHA cases essentially being consolidated for consideration in the Sixth Circuit. What does this mean? It means the OSHA Mandate is not in effect. (The OSHA Mandate was to be implemented on January 4, 2022 – but that is on hold as well.) OSHA recognizes this and has “suspended all activities relating to the implementation and enforcement” of its mandate. We previously addressed the unconstitutionality of the OSHA mandate, arguing (among other things) that OSHA ran afoul of the major questions doctrine (also known as the major rule doctrine), in that OSHA issued a major rule without clear Congressional authorization: “Legal experts” disagreed – and Twitter was aggressive in assuring the public that the OSHA mandate was legal.
It’s a bit early to take the victory lap (save that for after the Supreme Court makes its ruling – fingers crossed), but the Fifth Circuit made the same observation as we did back in September – that under analysis from the major questions doctrine, the OSHA Mandate exceeds the agency’s authority.
The CMS Mandate 11 states recently filed a lawsuit in a Louisiana federal court challenging the Biden Administration’s rule requiring vaccination of staff of Medicare and Medicaid providers and suppliers (which we will refer to as the CMS Mandate). Read the lawsuit here and the press release here. The CMS Mandate requires the first dose of the vaccine by December 6, 2021 and the second dose (if Pfizer or Moderna) by January 4, 2022. Health care companies/providers must ensure that all applicable healthcare workers “are fully vaccinated” by January 4, 2022. While the lawsuit has been filed, the court has not stayed the CMS Mandate. There is no guarantee that the court will pause the CMS Mandate pending the results of litigation. This means that if you are under the CMS Mandate, it is essential that you aggressively pursue a medical or religious exemption (or both). The Federal Contractors Mandate Finally, we get to the Federal Contractors Mandate. On September 9, 2021, President Biden issued an executive order requiring COVID-19 vaccination of federal contractors (or employees of federal contractors). Lawsuits have already been filed asking courts to stop the implementation of this mandate pending litigation. Like the CMS Mandate, no court has paused the implementation of the Federal Contractors Mandate, which requires covered federal contractor employees to be vaccinated by January 18, 2022. I repeat myself that if you are covered by this mandate, you must not rely on the courts for protection and be proactive with your religious and medical exemptions. Medical Exemptions If you are considering a medical exemption, pay attention. The good exemptions follow a straightforward formula and provide citations to prove their claims:
Religious Exemptions It is your right under Title VII, 42 U.S.C. § 2000e to make a religious exemption. I’ve seen them work for employees and for students. The religious exemptions have been successful where the person tells their employer that their sincerely held religious beliefs preclude them from taking the COVID-19 vaccines, as they are derived from aborted fetal tissue cells. If you hold these beliefs, then you might want to consider this type of argument: This vaccine is thus harvested from sin, and my acceptance of such a vaccine would make me complicit in the desecration of God’s creation. Do not copy and paste someone else’s religious exemption letter. Use it as a template, improve upon it – you must be proactive. Applicable verses/links:
Questions?
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