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For Employers, Vaccine Mandate Enforcement May Depend on Location

Last week, the Second Circuit Court of Appeals upheld New York’s vaccine mandate for healthcare workers. However, the Fifth Circuit Court of Appeals stayed enforcement of the federal Occupational Safety and Health Administration’s (OSHA) COVID-19 “vaccine or test” emergency temporary standard (ETS).

In New York, health care workers brought two separate federal court challenges claiming the state’s vaccine mandate violated their constitutional rights. Specifically, they claimed it violated their religious beliefs. One district court ruled against the challenge while the other district court granted a state-wide preliminary injunction. In an immediate appeal to the Second Circuit Court of Appeals, the appellate court vacated the preliminary injunction and affirmed the state mandate. In its analysis, the court found it “fully possible for employers to comply with” New York’s requirement and Title VII because employees may still request a religious accommodation that would allow them to work in a manner consistent with the mandate. New York’s law allows for employers to consider alternative accommodations for those individuals with religious objections when there are reasonable accommodations outside of the specific roles contemplated by the regulation.

In Texas, the Fifth Circuit ruled on a petition submitted by employers, states, religious groups, and individuals to halt OSHA’s rule. To establish its regulation, OSHA must show that the emergency regulation is “necessary” to protect employees from “grave danger” due to exposure to “substance or agents determined to be toxic or physically harmful.” The Fifth Circuit stated COVID-19 does not pose a grave danger because the virus is present in all workplaces. It also stated COVID-19 is “non-life threatening to a vast majority of employees,” so it does not meet the standard of “toxic or physically harmful.” The Court also questioned the overinclusiveness of the regulation: it covers employees because an employer is large and not because of a COVID-specific threat. The court also found the regulation is underinclusive because it fails to protect vulnerable employees working at smaller workplaces. The Sixth Circuit Court of Appeals will ultimately decide the merits of the challenge to the new regulation as a result of a multi-district lottery.