By Kaitlynn Milvert
When the federal Occupational Health and Safety Administration (OSHA) published its “vaccine-or-test” requirements for large employers on November 5, 2021, it immediately faced backlash from many states.
In the weeks that have followed, states not only have filed numerous lawsuits challenging the OSHA requirements, but also have actively pushed through legislation that seeks to limit the scope or use of vaccine requirements in the workplace.
This new wave of state legislation contributes to a landscape of uncertainty surrounding the legal status of workplace vaccine requirements and available exemptions.
State Litigation Against the Mandate
The OSHA “vaccine-or-test mandate” is an Emergency Temporary Standard that applies to large employers with at least 100 employees. The OSHA requirements obligate workers for these large employers to either receive a COVID-19 vaccine or adhere to regular COVID-19 testing by January 4, 2022.
One significant wave of state opposition to the OSHA requirements has come in the form of litigation. The attorneys general in at least 27 states have filed suits challenging these OSHA requirements. The states in these lawsuits contend that OSHA and the federal government have acted beyond their authority in imposing these standards for vaccines and testing.
Through this litigation, the enforcement of the OSHA requirements has been put on hold until further court order. This stay in enforcement comes from a suit brought in the Fifth Circuit by five states, along with several private employers and religious organizations.
Because challenges to the OSHA requirements — whether by states, private employers, or others — have been filed in all twelve regional circuits across the country, the lawsuits will now be consolidated and heard in a single circuit. The forum for that consolidated case was determined this past week through a lottery. Through that process, the Sixth Circuit was selected to hear the pending legal challenges to the OSHA requirements.
The Biden Administration has now asked the Sixth Circuit to immediately lift the stay on enforcement of the OSHA requirements. If the Court rules in favor of the Administration on this motion, OSHA could move forward with enforcing the vaccine-or-test requirements while these cases are litigated.
State opposition, however, has not come solely through litigation. In the wake of the OSHA requirements, state legislatures have been highly active in developing legislation that attempts to shield employees from workplace vaccine requirements.
Recently, at least 10 states have enacted new state statutes that try to either limit employers’ abilities to impose vaccine requirements or expand exemptions for individual employees. These statutes take a few main approaches.
First, some expand the availability of medical and religious exemptions to workplace vaccine requirements. Iowa is an example. Under the new Iowa statute, employees are entitled to a medical exemption without providing supporting medical documentation. Instead, the law requires only a “statement that receiving the vaccine would be injurious to the health and well-being of the employee” to qualify for the exemption.
Second, some state legislatures have created new types of exemptions, such as those based on “personal belief.” Utah has taken this approach. Separate from its religious exemption to vaccine requirements, Utah S.B. 2004 authorizes employees to claim an exemption where vaccination would “conflict with a sincerely held personal belief of the employee.”
Third, a couple of states have carved out exceptions for employees with previous exposure to COVID-19. Arkansas, for example, allows for employees to provide “proof of immunity,” in lieu of vaccination, by taking an antibody test or providing the results of a prior positive COVID-19 test.
Finally, some new state statutes go a step further and create a broad bar on enforcement of vaccine mandates in the workplace, prohibiting “adverse action” based on vaccination status. Tennessee’s new H.B. 9077 illustrates this extreme. The statute states that employers cannot take adverse action if an employee “objects to receiving a COVID-19 vaccine for any reason.”
The scope and applicability of these new state laws remains to be determined and is likely generate substantial litigation. In the meantime, though, the emergence of these novel state approaches to workplace vaccine mandates — and the pending legal challenges to the OSHA requirements — create substantial uncertainty for employers and employees alike about the applicable requirements and the validity of exemptions.