Lights, Camera Action: Get Your Popcorn Ready – The Supreme Court is Back in Session and COVID-19 is on the Agenda!

Employment issues will again take center stage at the U.S. Supreme court on January 7, 2022, and appeals related to vaccine mandates are sure to be the main attraction. Alas, vaccine mandates will be squarely before the Court and audiences nationwide will soon receive some clarity from the nation’s highest Court regarding vaccine mandates in the workplace.   

Enforcement of the Biden Administration’s vaccine mandates applicable to government contractors, CMS and large employers had been stayed or partially stayed by various federal courts.  The OSHA Emergency Temporary Standard (ETS) applicable to most employers having 100 or more employees was stayed by the Fifth Circuit Court of Appeals prohibiting enforcement of the rule.  However, on December 17, 2021, the Sixth Circuit Court of Appeals, which was chosen by lottery to hear the consolidated appeals challenging the ETS, dissolved the stay that the Fifth Circuit put in place. Thus, employers with 100 or more employees that are not specifically exempt from the standard due to disability or religious belief must now take steps to comply with the emergency rule. Judge Stranch delivered a gripping opinion addressing the question that has been vexing employers since the beginning of the pandemic:

Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace.

After the Sixth Circuit’s ruling, OSHA issued guidance, providing employers with additional time to abide by requirement of the ETS. Specifically, employers have until January 10, 2022, to abide by non-testing requirements and until February 9, 2022, to abide by the testing requirements. 

With that being said, one thing is for sure, the rule regarding vaccination is an issue of great significance currently being litigation throughout the country. 

In the state of Texas, if you work for an employer who is subject to the ETS mandate, you must abide by your employer’s requirement regarding either vaccination or weekly testing and masking in the workplace. However, even with that being said, Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act carry a trump card (no pun intended). If you have a disability that exempts you from vaccination or masking requirements, you are entitled to request an exemption from your employer as a form of reasonable accommodation. Similarly, if you have a closely held religious belief that prevents you from taking the vaccine, you may also request a vaccine exemption from your employer. If your employer fails to grant you an exemption, you may have a claim of discrimination. 

If you believe you have a claim of discrimination or would like to know your rights as it pertains to vaccine mandates, give my office a call and schedule a consultation with me. 


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