All three Biden administration vaccine mandates covering private sector employees are now temporarily blocked nationwide. In his decision blocking the vaccine mandate for federal contractors, U.S. District Judge R. Stan Baker found that the mandate “works as a regulation of public health, which is clearly not authorized under the Procurement Act.”
A final discussion may be weeks, if not months away. As with the OSHA ETS, the Georgia decision will eventually head to a federal circuit court of appeals, which will decide whether to lift the injunction, and will likely make it to the Supreme Court thereafter.
If the Supreme Court does weigh in on the federal contractor mandate, its decision could have implications far beyond the case. A decision against the Biden administration could significantly curtail a President’s authority to effect labor and employment policy through executive orders of any kind. This would be a substantial blow to the Biden administration’s labor agenda. The forthcoming White House Labor Task Force report, for example, is expected to contain a number of proposed executive actions imposing labor and employment law and policy changes on federal contractors.
Meanwhile, New York City announced a new vaccine mandate for all employees of private sector employers working in person in the city. All NYC employers, regardless of their size, must ensure that all covered employees receive at least one dose by December 27, 2021. Although certain specifics of the mandate have yet to be released, it is not expected that testing will be available as an alternative, nor will testing or masking be sufficient as a reasonable accommodation for medical or religious reasons.
Outlook: The New York City mandate may be the first such mandate issued at the state or local level, but it may not be the last, particularly if the federal mandates are permanently invalidated. Other “blue” jurisdictions may soon follow suit.
