What's next for employers after Biden's vaccine mandate halted

On the heels of a temporary injunction halting the start of the Biden administration’s national vaccine mandate for health care workers, some lawyers have said it’s too soon to analyze the ultimate outcome, pointing out the fluid nature of the COVID-19 pandemic and corresponding mandates.

Other attorneys have disagreed, noting outcomes may differ depending on the litigants.

“There’s two broad camps of vaccine litigation going on right now in the courts,” said labor and employment attorney Alex Castro of Fisher Phillips in Fort Lauderdale, Florida.

Castro said most vaccine litigation has been either employees versus employers, or states versus the federal government. Both groups share similar missions contesting vaccine mandates, but he said one defendant group might stand a better shot in court.

“Employers have a right to run their business the way they want to, subject to certain limitations,” Castro said. “Employers may have an easier time implementing their own voluntary policies in a way that the federal government wouldn’t be able to tell private employers to do so.”

The Biden administration attempted to exert such authority by proposing vaccine mandates for private contractors and health care workers.

Under the most recently contested federal mandate, unvaccinated health care workers at hospitals, nursing homes or other health facilities participating in Medicare or Medicaid programs had to receive a first shot by Dec. 6 and be fully vaccinated by Jan. 4.

But an injunction issued by U.S. District Court for the Western District of Louisiana Judge Terry A. Doughty temporarily blocked the health care worker vaccine mandate from rolling out next week.

“There is no question that mandating a vaccine to 10.3 million health care workers is something that should be done by Congress, not a government agency,” Doughty wrote in the injunction.

The federal Louisiana injunction expanded a separate ten-state order issued less than 24 hours prior by U.S. District Court for the Eastern District of Missouri Judge Matthew T. Schelp.

‘Continue to fight’

Georgia Attorney General Chris Carr took to Twitter applauding the injunction that came from a multistate lawsuit that included Georgia.

“BREAKING: In response to our lawsuit, a federal court has temporarily stopped the vaccine mandate for healthcare workers nationwide,” Carr tweeted. “This decision reaffirms that Biden’s mandate is unconstitutional and we will continue to fight to protect the rights of Georgia’s citizens.”

Carr has often referred to vaccine mandates announced by the Biden administration as unconstitutional and an overreach of the president’s authority.

Like Carr, Doughty’s injunction also questioned the constitutionality of the Biden administration’s health care worker vaccine mandate.

“It is not clear that even an act of Congress mandating a vaccine would be constitutional,” Doughty’s injunction read.

But some labor and employment attorneys have disagreed.

‘Clients are confused’

Castro said the constitutionality of the health care worker mandates could be debated but that ongoing changes between federal and state regulations, injunctions and litigation had led to confusion in the employment sector.

“I think the bigger impact is practicality,” he said. “The vaccine mandates recently started picking up nationally and now everybody’s being told from one quarter or another, they have to pump the brakes. I get calls like this all the time. Our clients are confused. They don’t know what to do.”

He said he advises employers confused by the start-and-stop vaccine push to remain prepared for an injunction to lift, noting “all the different federal mandates that are out there and that are embroiled in legal challenges have all been halted, but that doesn’t mean that they’re dead.” Castro also pointed out that with the emergence of the COVID-19 Omicron variant confirmed in the United States Wednesday, it’s too soon to tell what, if any, impact the virus mutation may have on future vaccination requirements and litigation.

Like many other lawyers, Castro said he’d be paying close attention to the next steps taken by many federal district courts, but he cautioned fellow jurists against viewing the onset of vaccine mandate litigation as an emerging industry.

“I don’t think it’s going to become something like ‘bread and butter’ discrimination cases that we read about. But, certainly for now, it’s a hot topic,” Castro said. ”To some degree, at least we hope, COVID is temporary. So in theory, the controversy surrounding it will die off when the virus dies off, at least, in a way where it’s not on everybody’s mind day in and day out.”