Posts tagged ‘vaccine mandate’

Where Do Credit Unions Stand With Vaccine Mandates?

In September the President took two dramatic steps in response to COVID-19, both of which are now subject to litigation: He issued an Executive Order requiring all executive branch agency employees and their contractors to get vaccinated. Secondly, he ordered OSHA to promulgate emergency workplace safety standards mandating employers with 100 or more employees require their employees get vaccinated or agree to get tested for the vaccine on an ongoing basis.

In yesterday’s blog, I explained that credit unions are not subject to the President’s Executive Order because NCUA is an independent agency. In response, a reader asked me if this also meant that credit unions with 100 or more employees were exempt from the OSHA mandate. With the usual caveat that my opinions are my own, and not a substitute for legal advice from your retained attorney, the answer is that credit unions would be subject to OSHA’s vaccine mandate, but it remains to be seen whether or not it will ever take effect.

The financial service industry has not had to give much thought to OSHA in the past because it has never been made subject to industry specific workplace safety standards. Under the law regulating OSHA, however, an employer is any business engaged in commerce, a category which certainly includes credit unions of all shapes and sizes. As a result, if the OSHA mandated vaccine requirement ever takes effect, every credit union with 100 or more employees will have to comply. 

But it is far from certain that this requirement will ever make it through the legal gauntlet. The Court of Appeals for the Fifth Circuit has already issued a nationwide order blocking OSHA from implementing the emergency standard. In its decision, the Court explained that OSHA was exceeding the power given to it by Congress because the vaccination mandate “is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly “grave danger” the Mandate purports to address.” BST Holdings, L.L.C. v. Occupational Safety and Health Administration, United States Department of Labor, 2021 WL 5279381, at *4 (C.A.5, 2021)

The next stop is the Sixth Circuit, but there is virtually no doubt that the issue will ultimately be decided by the Supreme Court, a court which has taken an increasingly narrow view of administrative powers.

So where does this leave credit union HR professionals as they ponder next steps? Most importantly, if you were hoping that the law would mandate that your employees be vaccinated, then you should prepare yourself for disappointment. That being said, no matter what happens with the President’s proposals, your credit union still has all the authority it needs to mandate vaccination and/or testing if it chooses to do so for those employees in the workplace.

On that note, enjoy your Thanksgiving and don’t let your crazy Uncle Al get under your skin.

November 23, 2021 at 10:13 am Leave a comment

What FDA’s Vaccination Approval Means For Your Credit Union

The announcement yesterday that the FDA has given final approval to the Pfizer COVID-19 vaccine puts employers at the center of the debate about how to respond to the continuing COVID-19 health crisis.

The FDA’s decision provides further clarity regarding the rights of employers to mandate that employees get vaccinated as a condition of employment. Before yesterday’s announcement, vaccination opponents had argued, without legal success, that the emergency process used to initially approve the COVID-19 vaccine meant that individuals could not be forced to get vaccinated as a matter of federal law.

Now that argument is irrelevant. Within minutes of the announcement several employers announced that vaccinations would now be mandatory for their employees. Federal guidance already authorizes vaccine mandates and the Supreme Court ruled more than 100 years ago that there is no constitutional right not to be vaccinated. The vaccine announcement also comes at a unique time for employers in New York State. We have a new Governor and in recent weeks the state has largely avoided imposing new statewide mandates. Once again, this means that as employers you have more flexibility than ever before.

Now don’t get me wrong, just because you can legally do something doesn’t mean it’s a smart thing to do. The goal should be to maximize the number of employees who are safe and vaccinated. Whether this goal is best accomplished with a carrot instead of a stick is a case-by-case decision. But now that the legalities have been dealt with, policies should be clarified. Time to get that HR attorney back on the phone.

August 24, 2021 at 9:21 am 1 comment


Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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