There is a lot of confusion among both employers and employees about the status of Covid vaccine mandates. Here in Texas the problem is especially acute because we have dueling state and federal mandates. While the federal government, by way of OSHA (and by way of CMS for healthcare workers), is in the process of issuing a vaccine or testing mandate for employers with more than 100 employees, our state’s governor has issued his own order purporting to ban employers from instituting any vaccine mandates — voluntarily or otherwise. Both employers and employees are caught in the middle and, unfortunately, employment lawyers like me and those on the employer side don’t have any great answers to give.

To the rescue, sort of, rides the U.S. Supreme Court. Late last month, the Supreme Court issued a pair of orders (here and here) scheduling oral arguments on two vaccine mandates for January 7, 2022: (1) the OSHA vaccine or test mandate for employers with more than 100 employees; and (2) the CMS vaccine mandate for healthcare workers.

Unfortunately, whatever the Supreme Court does will likely not end the confusion on this issue. The cases that are before the court are merely seeking a stay pending a ruling by the lower courts on the actual merits. That means that whatever ruling the Supreme Court issues will not be the final word on whether the mandates are enforceable.

In anticipation of a possible ruling, OSHA has pushed back its enforcement deadline to February 9th, as long as employers are “exercising reasonable, good faith efforts to come into compliance with the standard.” (Whatever that means.)

The main attack against the OSHA rule thus far has been that the agency used its emergency power instead of going through a normal rule making process. OSHA understands that is where it is weak and so, while it is moving to enforce the emergency rule, it is also following the slower rule-making process and taking comments so that it can convert the emergency standard into a permanent rule. 

For employees (and employers) the uncertainty is likely to continue for some time.

Chris McKinney is a San Antonio employment lawyer, who represents employees in cases involving sexual harassment, race discrimination, sex discrimination, age discrimination, disability discrimination, and health care whistleblower cases.