DOL Vax-or-Test Rule's Ascension to High Court 'Inevitable'

Loeb New York Employment & Labor chair Ian Carleton Schaefer spoke with Law360 about the latest on the U.S. Department of Labor’s (DOL’s) rule requiring companies with at least 100 employees to mandate COVID-19 vaccinations or weekly tests. In the recent wake of a Fifth Circuit ruling that dealt a blow to the DOL’s regulation, sources, including Ian, told the publication that the DOL’s regulation will most likely end up before the U.S. Supreme Court.

"I don't see a way that this doesn't get to the Supreme Court," Ian said. "I think that's inevitable. I think practically, it creates more confusion around reopening plans."

OSHA, the Labor Department's workplace safety arm, is authorized to issue a regulation called an emergency temporary standard to address "grave dangers" to workers. That's what the agency did here with the latest DOL vaccine requirement.

"The question is whether the government, broadly—but whether OSHA had the authority, because OSHA promulgated the rule—whether the government had the authority to issue a temporary standard under these conditions, or whether it went above and beyond its charter and mandate in doing so," Ian noted.

Ian told Law360 that the high court could possibly narrow the scope of the mandate, or scrap it altogether. But he said employers should do their best to block out the legal wrangling, on which there's no clear timeline, and focus on their own policies.

"So what we're telling folks is, you know, keep planning for what makes most sense for your organization," he said. "It's sort of a case of … do you want to control your own destiny? Or do you want the government dictating the destiny for your particular organization?"