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Court ruling sparks discussion about legality of vaccine mandates

November 10, 2021

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A rule issued Friday by the Occupational Safety and Health Administration (OSHA) requires large employers to require employees get vaccinated for COVID-19 or undergo weekly testing.

The rule was temporarily blocked by a federal appeals court. Now, some people are asking if the rule is legal?

Associate attorney Melanie Franco of Tully Rinckey answers questions daily about vaccine mandates. Very often, she explains that the action of a state, city or private employer mandating a vaccine does not violate workers’ rights.

“There are situation where if there is an emergency, the government can step in to protect employees,” said Franco.

The rule issued by the Occupational Health and Safety Administration that was halted requires companies with 100 or more employees to ensure their workers are vaccinated against COVID or undergo weekly testing beginning Jan. 4.

Arguments made against the rule included OSHA did not have the legal grounds to mandate a vaccine, and COVID-19 is not currently a “grave danger.”

But Franco said there are certain scenarios, like a public health crisis, where government can step in to protect its workers, and it probably wouldn’t take much to define the pandemic as a public health crisis.

“Obviously, in the past there has been vaccine mandates for schools, but for the public as a whole, this is pretty new, but it seems like there is a lot to go off of to demonstrate there is a public safety issue here,” said Franco.

Race, sex, age, religion, national origin, disability and genetic information are protected from employment discrimination.

Vaccination status is not included.

Though because of those protected classes, an employer must consider religious or medical exemption when creating vaccine mandates.

“It’s even within the constitution that they can enact law to protect their citizens,” said Franco.

She says she can see New York creating other vaccine-related mandates like the health care worker mandate.

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