What Risks do Employers Face if They Mandate COVID Shots in the Absence of Federal Mandates?

Federal Courts Have Stayed all Three Federal COVID Injection Mandates.

The Biden administration earlier this year issued three national mandates through OSHA, the CMS (see below) and the Department of Defense (DoD).

  • The Occupational Safety and Health Administration (OSHA) imposed a vaccination mandate on companies with more than 100 employees.
  • The Centers for Medicare & Medicaid Services (CMS) issued a similar decree on health care providers.
  • The President issued an executive order stating that the government would no longer contract with (or permit subcontracts to) companies with unvaccinated employees. The DoD began implementing the order.

Federal courts have issued nationwide injunctions against all three.

The court opinions have focused on the federal government’s lack of subject matter jurisdiction when it comes to health and safety. The U.S. Constitution reserves these “police powers” to the states.

The opinions also identified a fatal separation-of-powers problem.  All new laws must originate in the legislature, and then be enforced by the executive branch. The courts ruled that no existing statutes authorize OSHA, CMS, or DOD to issue the COVID mandates.

I would be shocked if any of these injunctions is overturned.

Employers Need to do a New Risk Analysis Regarding Injection Mandates.

Many employers implemented injection mandates as soon as the federal government announced its plan to require them. Some claimed they did so because of the government requirements.

If the federal mandates are not revived, the government excuse will evaporate. Employers who want to maintain their mandates will need to look to state and local employment laws.

Employees who suffer vaccine injuries will likely be able to file claims against their employers.

Some states have passed laws forbidding injection mandates. These laws further complicate each employer’s analysis, especially if the company has employees in multiple states.

Risk Management Conclusions.

Scores of public safety and health care workers have quit or been fired for refusing the injections, exacerbating existing staffing shortages.

I’m starting to see reports of health care companies rescinding their mandates and rehiring employees.

Employers who don’t do likewise also need to add a potential staffing shortage to their list of risk factors.

I encourage you to consult with savvy employment counsel licensed in your jurisdiction.  I would be happy to check my list of specialty lawyers to help you find one where your are.

Thank you!

Michael Oswald

michael@msochartered.com

www.msochartered.com

Please note: the above post contains educational information. It is not intended as legal advice. Engage an attorney who is licensed in your state to get advice on dealing with any specific legal issue.

© 2021 Michael S. Oswald

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