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Legal Challenges to Department of Labor’s Vax-or-Test Rule Are Rolling In

Loeb & Loeb New York Employment & Labor chair Ian Carleton Schaefer is quoted in an article by Law360 discussing recent legal challenges brought by states, businesses and religious entities concerning the U.S. Department of Labor’s (DOL’s) latest emergency rule directing medium and large employers to require their workers to get vaccinated against COVID-19 or take weekly tests.

The emergency temporary standard (ETS) by the DOL's Occupational Safety and Health Administration was published on Friday, November 5, and requires employers with more than 100 workers, roughly 84 million individuals, to require employees to be fully vaccinated by January 4. 

Legal challenges from certain states, businesses and various religious groups have made their way to the Fifth Circuit Court of Appeals, but the DOL believes that the new rule is "well within OSHA's authority" and that the federal government is ready to defend it. While Texas is one of several states which bans vaccine mandates, Schaefer explained to Law360 that the mandate was created in such a way to sidestep these type of state measures.

“They [the federal government] didn’t have to do this, but they did state very explicitly that this ETS is intended to preempt any state laws to the contrary…that would create a conflict between the ETS and state law, where businesses would be penalized for enacting mandatory vaccination programs,” Schaefer told Law360.

Click here to read the article on Law360’s website.