SUSPENDED: Federal Vaccine Mandate

We have kept you apprised of developments around the federal vaccine mandate, which is a component of President Biden’s “Path Out of the Pandemic” plan. The mandate, which comes from the Occupational Health and Safety Administration (OSHA) in the form of an Emergency Temporary Standard (ETS), will apply to businesses with at least 100 employees, with the potential to apply to two million Michigan residents.

Our November 4th and November 11th Weekly Updates featured the mandate and related information. The Midland Business Alliance will offer an event this coming Monday to explain the complicated mandate and what employers need to know. Keep in mind that the Biden administration is considering eventually extending this mandate to employers with less than 100 employees, as well.

Congressman John Moolenaar (R-Midland) recently introduced legislation that would disable OSHA from using federal funds to carry out the federal vaccine mandate. We applaud the Congressman for this strategy.

Just yesterday, it was announced that OSHA is suspending enforcement of the mandate in response to a court order that OSHA halt implementation & enforcement until further court order. At this moment, no one can project just how long that court process will take. At the same time, it is unclear how long businesses will have to “gear up” for the mandate, if the courts ultimately uphold the mandate.

So, what led up to this suspension? On November 5th, the Fifth U.S. Circuit Court of Appeals issued a stay, which essentially “pauses” the order, but doesn’t change anything within the rules or timelines. The Department of Justice responded with a request to lift the stay, but the Court reaffirmed their decision on November 12th. Since lawsuits against the mandate had been filed in all 12 Circuit Courts around the nation, one Court was randomly selected to hear the legal challenges to the mandate. The 6th U.S. Circuit Court was selected, but the timeline for that process is unknown. Of course, the case could ultimately go to the U.S. Supreme Court.

Last week, the MBA joined the Listen to MI Business coalition to officially oppose the mandate. Additionally, in anticipation of the mandate’s implementation, we joined in with several dozen Michigan Chambers in requesting that Governor Whitmer provide funding to support businesses’ purchase of testing supplies for their employees who decline to get vaccinated.

Monday’s Issues & Answers programming will feature Steve Palazzolo of Warner Norcross + Judd LLP. Mr. Palazzolo will provide a comprehensive overview of the mandate. We believe this information is more important than ever, with the uncertainty of if or when businesses could once again be facing a vaccine mandate. Register online by Friday to attend this event.

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