Court revives U.S. COVID-19 vaccine mandate for healthcare in 26 states

By Tom Hals

(Reuters) -A U.S. federal appeals court on Wednesday revived in 26 states a Biden administration COVID-19 mandate requiring millions of U.S. healthcare workers to get vaccinated if they work in federally funded facilities.

In a rare win for President Joe Biden’s pandemic strategy, the 5th U.S. Circuit Court of Appeals in New Orleans ruled that a lower court only had the authority to block the mandate in the 14 states that had sued. The appeals court ruled that the lower court was wrong to impose a nationwide injunction.

Biden’s mandate requires that healthcare facilities get staff vaccinated against the coronavirus or lose funding from Centers for Medicare & Medicaid Services.

The rule initially required more than 2 million unvaccinated healthcare workers be vaccinated by Dec. 6. It was blocked before the deadline and remains temporarily blocked in 24 states — the 14 states involved in the case reviewed by the New Orleans appeals court and 10 states where the mandate was blocked by a Nov. 29 ruling from a federal judge in St. Louis.

The 14 states that sued are: Alabama, Arizona, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah and West Virginia.

The appeals court said the Biden administration had not made a strong showing that it was likely to prove during the litigation that it had the authority to impose the rule. The decision was rendered by Judges Leslie Southwick, appointed by President George W. Bush, and James Graves and Gregg Costa, both appointed by President Barack Obama.

The government argued that the mandate will potentially save thousands of lives every month as COVID-19 infections and deaths are expected to spike with the onset of winter and arrival of the Omicron variant, which carries a higher risk of infection.

The rule is one of three far-reaching Biden administration requirements aimed at boosting vaccination rates above the current 61% in the United States, where infections are rising and deaths remain above 1,000 per day.

Republican state attorneys general and conservative organizations and businesses have challenged the rules.

Two other COVID-19 requirements have also been blocked in courts.

In November, the same New Orleans federal appeals court blocked the administration’s workplace vaccine-or-testing mandate for businesses with at least 100 employees.

That mandate is currently being reviewed by the 6th U.S. Circuit Court of Appeals in Cincinnati. On Wednesday, the court sided with the Biden administration, agreeing to hear the case initially before a three-judge panel rather than all 16 active judges on the court.

The final mandate requiring government contractors get their employees vaccinated was blocked by a federal judge in Georgia earlier this month.

(Reporting by Tom Hals in Wilmington, Delaware; Editing by David Gregorio)

New York City, union reach agreement on vaccine mandate

By Kanishka Singh

(Reuters) -New York City’s public-sector employee union District Council 37 and the administration of Mayor Bill de Blasio on Thursday reached an agreement on a COVID-19 vaccine mandate for over 55,000 city workers.

District Council 37 members who have not provided proof of at least one dose of the vaccine will have the option to resign or take a leave of absence and in both cases, employees will maintain their health benefits, the union said in a statement.

Employees without proof of vaccination who have either not submitted an application for an exemption or who have been denied an exemption may be placed on unpaid leave beginning Nov. 1 through Nov. 30, the union said.

It added that employees will remain eligible for health benefits during this time. District Council 37’s vaccination rate among city employees is now 92%.

The New York City mayor had declared his coronavirus vaccination order for emergency responders a success on Monday, with no disruption to city services, despite a sickout by some firefighters who officials said were protesting the mandate.

The mayor’s Oct. 20 order, which police and firefighter union leaders said would cause staff shortages, led to an 11th-hour rush of inoculations that shrank the ranks of the unvaccinated as officials in the largest U.S. city began enforcing the mandate on Monday morning.

Mandate disputes also have erupted in other cities as political leaders, including President Joe Biden, have sought to stem the spread of the highly contagious Delta variant of the coronavirus.

New York City police and firefighter unions also have challenged the mandate. But the Police Benevolent Association of the City of New York said late last month that courts rejected its requests for an emergency order to halt the mandate’s enforcement.

(Reporting by Kanishka Singh in Bengaluru; Editing by Steve Orlofsky)

Analysis: Wide array of opponents prepare to fight Biden vaccine mandate

By Nandita Bose and Tom Hals

(Reuters) – The country’s first national COVID-19 vaccine mandate, expected to be unveiled by the Biden administration this week, is likely to unleash a frenzied legal battle that will hinge on a rarely used law and questions over federal power and authority over healthcare.

States, companies, trade groups, civil liberty advocates and religious organizations are expected to rush to court with demands to stop the mandate in its tracks. Two dozen Republican state attorneys general have already vowed to use “every legal option” to fight the mandate and 40 Republican lawmakers said on Wednesday they were preparing their own challenge.

Details of the vaccine and testing requirements for private employers remain under wraps. The administration has said that the rule is coming and that it requires certain businesses to “develop, implement and enforce” a mandatory policy that allows employees to either choose to get vaccinated or undergo regular testing and wear a face covering at work.

For opponents, the general principle could not be more clear: the administration’s zeal for fighting the pandemic with vaccinations and testing has trampled the law and the Constitution.

“There will be so much litigation it will never see the light of day,” said Josh Blackman, a professor at South Texas College of Law Houston.

Some legal experts, however, said protecting against a historic public health crisis provides a compelling justification for the mandate against constitutional challenges that claim it infringes on individual or state rights.

COVID-19 vaccine requirements by colleges, cities, states and companies have generally been upheld. The Supreme Court said on Friday that Maine could impose its mandate on healthcare workers, even without the usual religious exemptions.

However, the national vaccine and testing rule, which will likely run hundreds of pages, will differ in important ways from existing vaccine requirements.

It will be issued as an emergency temporary standard (ETS) by the Occupational Safety and Health Administration (OSHA), which regulates workplace dangers. Businesses with at least 100 employees must enforce the rule on their staff or face penalties.

To issue an ETS, OSHA must show there is a “grave danger” in workplaces, and it needs to justify that emergency rule as a necessary response.

A White House spokesperson did not comment for this story. White House Press Secretary Jen Psaki has said a pandemic that has killed over 740,000 Americans qualifies as a “grave risk to workers.” The Department of Labor declined to comment.

An average of 1,100 Americans are still dying daily from COVID-19, according to the latest U.S. data, the vast majority of them unvaccinated.

However, critics expect the OSHA rule to be vulnerable to legal attacks.

COVID-19 infections are trending down, some 70% of U.S. adults are fully vaccinated and treatments for the disease have improved, potentially undermining the grave danger claim.

“I think there’s an issue as to whether they can show that in every business, in every industry, every employer that has more than 100 employees, there is a grave danger from COVID,” said Scott Hecker, an employment attorney with Seyfarth Shaw, which represents businesses.

Or, as the National Retail Federation described it in a letter to Labor Secretary Marty Walsh, “workers face the danger of COVID-19 wherever they go … because they are human beings going about the world, not because they go to work.”

OSHA has convinced courts to uphold emergency standards in the past with evidence that as few as 80 lives would be saved. It will also be able to argue that masking and other COVID-19 safety measures proved no match for the extremely contagious Delta variant, necessitating the current rules.

“The fact that a person can be exposed to the COVID virus outside of the person’s place of employment does not eliminate OSHA’s authority to regulate,” Sidney Shapiro, a law professor at Wake Forest University, told a Congressional hearing last week.

Republican governors and right-wing talk show hosts have waged a political war against vaccine mandates and mask wearing, hoping to galvanize voters against Democratic President Joe Biden.

Vaccine mandates have been effective at shrinking the ranks of the unvaccinated, although they have also touched off protests, and employers worry they could worsen a national labor shortage.

Mandates on individuals have a long history and have been upheld by courts for more than a century, but they have been imposed by local and states governments, not Washington, which is restrained by the U.S. Constitution.

Critics of the mandate will argue it interferes with traditional states’ roles, namely, regulating healthcare within their boundaries.

OSHA is also fighting history. The agency has issued 10 ETS over its 50 years. Of the six that were challenged in court, only one survived entirely intact.

In the meantime, a huge number of U.S. employers will be left dealing with an uncertain outcome of the legal challenges, even as many focus on achieving compliance.

Mike Bennett, the vice president of human resources for Cianbro, a Maine construction company with 4,000 employees, said he is planning to carry out the OSHA rule.

“Unless something comes from the federal government that says ‘pause until further notice,’ we’ll continue to go down the road that this is coming,” he said.

(Reporting by Nandita Bose in Washington and Tom Hals in Wilmington, Delaware, Editing by Chris Sanders, Amy Stevens and Bill Berkrot)

U.S. employers could mandate a COVID-19 vaccine, but are unlikely to do so: experts

By Tina Bellon

(Reuters) – Private U.S. companies have the right under the law to require employees to get vaccinated against COVID-19, but are unlikely to do so because of the risks of legal and cultural backlash, experts said.

Companies are still in the early stages of navigating access and distribution of vaccines against the disease caused by the novel coronavirus, but inoculation is considered the key to safely resume operations at crowded warehouses, factory lines and on sales floors.

“Companies have every good reason to get all of their employees vaccinated and also have an obligation to keep all employees and customers safe,” said Lawrence Gostin, a global health law professor at Georgetown University.

Gostin and five other health law experts said private companies in the United States have broad liberties to set health and safety standards, which would allow them to mandate vaccinations as a condition of employment with some exceptions.

The Equal Employment Opportunity Commission in May said employers were allowed to compel employees to get a coronavirus test before allowing them to return to work, a decision that some experts said might be extended to vaccine mandates.

But Robert Field, a law and public health professor at Drexel University, said companies considering mandates should wait for vaccines to undergo a full-fledged regulatory review process.

“Employers are on shakier grounds because of the emergency use authorization,” Field said, adding there was no precedent for vaccine mandates during that phase.

U.S. courts that have ruled on lawsuits by healthcare workers opposing employer-mandated flu vaccines have largely sided with hospitals as long as they provided reasonable exemption policies, court records showed.


In Europe, companies face a patchwork of national vaccine regulation, with some countries mandating childhood vaccines, but European employers overall are unlikely to be able to mandate vaccination for staff, experts said.

In France, which in 2018 began mandating some childhood vaccines, some vaccinations are obligatory for professionals in the social and healthcare industry. President Emmanuel Macron has said a coronavirus vaccine will not be mandatory.

In Germany currently, only measles vaccines are mandatory for some employees and companies have no sufficient legal basis to order COVID-19 vaccination, said Pauline Moritz, a Frankfurt-based employment law attorney.

And in the UK, the government has no legal power to compel vaccination and employers attempting to mandate vaccines would likely confront human rights concerns, employment lawyers at Morgan Lewis wrote in a blog post.

U.S. agencies to date have not weighed in on COVID-19 vaccine mandates, but the Occupational Safety and Health Administration (OSHA) in the past has said employers have the right to mandate vaccines.

OSHA referred a request for comment to the U.S. Department of Health and Human Services, which did not respond.


U.S. companies so far are shying away from discussing vaccine mandates, ahead of formal approval for a vaccine by the U.S. Food and Drug Administration.

Ford Motor Co, which has ordered a dozen ultra-cold freezers to distribute vaccines to employees, said they would be made available on a voluntary basis.

A spokeswoman for Kellogg Co said the company was working with a medical expert and industry trade associations to make vaccines available to employees on a voluntary basis, in compliance with local and regional regulations.

“Companies could theoretically issue a mandate, but in the current political climate it is very unlikely they will do so,” said Peter Meyers, a law professor at George Washington University Law School. “Americans tend to shy away from mandates.”

Surveys have shown many Americans have safety concerns about a COVID vaccine, with nearly half of the 10,000 respondents polled in a September Pew research survey saying they would definitely or probably not get the vaccine.

Some experts said any vaccine mandates would prompt litigation. Cases alleging infringement on religious freedom could make it to a more conservative U.S. Supreme Court.

Vaccine mandates are common in the U.S. healthcare industry, where many hospitals require staff to take annual flu shots and all U.S. states mandate vaccines for school children.

Employees and parents can object to vaccines largely on two grounds: medical conditions that contraindicate vaccination or – depending on the U.S. state – religious or personal believes.

Some union contracts with individual employers, particularly in the healthcare industry, also prevent mandatory vaccines.

If an employee rejects vaccination on religious grounds, an employer has to make a reasonable effort to accommodate the worker, such as offering a transfer to a different department with fewer personal interactions or mandating masks, said Dorit Rubinstein Reiss, a law professor at UC Hastings.

So far two companies, Pfizer Inc and Moderna Inc, have asked the U.S. Food and Drug Administration for emergency use authorization of their vaccine candidates.

The chief adviser of the U.S. government’s COVID-19 vaccine program said on Tuesday that 20 million people could be vaccinated by the end of 2020, and that by the middle of 2021 most Americans will have access to highly effective vaccines.

(Reporting by Tina Bellon in New York; Additional reporting by Richa Naidu in Chicago; Editing by Joe White and Nick Zieminski)