Mark Pestronk
Q: In your Nov. 22 Legal Briefs column, "There's no testing option for vaccine mandate," you predicted that the Covid vaccine mandate for all federal government contractors and subcontractors would probably survive legal challenges. How has that prediction worked out for you, and what does it mean for our travel agency, which is a subcontractor for some government defense and healthcare contractors?
A: My prediction was wrong. On Dec. 7, a federal judge in Georgia issued a preliminary injunction prohibiting the president from enforcing the contractor and subcontractor vaccine rule nationwide.
A preliminary injunction is an order to stop an activity until the end of a trial or dismissal of the case. The federal government has vowed to appeal, but an appeal could take many months to decide and a further appeal to the Supreme Court could take up to another year.
Courts have ruled not only against the contractor and subcontractor rule, but the two other vaccine rules have also been preliminarily enjoined: the rule requiring employers with 100 or more employees to require vaccinations or weekly testing and the rule requiring healthcare workers to get vaccinated or get an exemption.
The effect of these three injunctions is that no company has to obey the federal rules until further notice. If the rules are ever reinstated, they won't be enforced overnight. Rather, there would be a new phase-in period during which employees can get vaccinated.
In the absence of federal rules, employers need to obey state and local vaccine-related laws. As of early December, 20 states prohibit "proof of vaccine" requirements for some employees and/or customers: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Missouri, Montana, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah and Wyoming. Travel agencies in those states have to obey those requirements. For specific information, search for "vaccine passports" at https://ballotpedia.org.
No state has gone in the other direction and required vaccination for employees of private businesses. Only one municipality, New York, has such a requirement, which will become effective Dec. 27.
For agencies with offices in multiple states and cities, this patchwork, coupled with uncertainty about the fate of the preliminary injunctions, creates major headaches. In states that don't prohibit it, you can require vaccination as a condition of continued employment, according to the Equal Employment Opportunities Commission, subject to reasonable accommodation for employees with religious objections or medical problems.
Multistate employers may want to consider whether it is fair to have different policies in different states, or conversely, whether it is fair to vaccinated staff to allow unvaccinated employees in offices where you can impose a mandate. As one employment law expert puts it, "Whatever approach you take, clear communication with employees is key. Like employers, many employees are confused by news reports about the federal mandates and the legal challenges to them. Employees want to know that you are aware of these developments, how you are responding to them and the rationales for any policy changes you make."