OSHA Suspends Implementation and Enforcement of Large Employer Vaccine ETS In Response to Legal Challenges
As we communicated in a prior alert, on Thursday, November 4, 2021, the federal Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) establishing minimum COVID-19 “vaccine or test” requirements for private employers with 100 or more employees. Shortly after OSHA announced the ETS, several states, businesses, religious groups and individuals filed legal challenges to the standard. On November 6, 2021, the Fifth Circuit Court of Appeals issued a preliminary ruling staying implementation of the ETS, pending further briefing in the court. Following that briefing, on November 12, 2021, the Fifth Circuit issued an order staying enforcement and implementation of the ETS. In recognition of the court‘s decision, the Biden administration announced that OSHA has suspended all activities relating to the implementation and enforcement of the ETS pending further litigation. However, the legality of the ETS is expected to be further litigated, likely with the Supreme Court making a final decision. Keep in mind that the Fifth Circuit’s ruling has no effect on vaccine mandates applying in healthcare settings or to federal contractors and subcontractors.
What does this mean for employers?
Although not expressly stated by the administration, it appears that employers who would have been covered by the November 4, 2021 ETS have a reprieve of the upcoming December 6, 2021 and January 4, 2022 deadlines, as the courts will take some time to provide much-needed clarity and a final decision. Employers should take this opportunity to evaluate their own philosophy on vaccines going forward. For example, some employers are moving forward with a vaccine mandate regardless of the outcome of the ETS litigation. At a minimum, employers should consider collecting proof of employee vaccination to determine what percentage of their employees are vaccinated. Additional information on that topic can be found in this prior alert.
Employers should consult with experienced human resources professionals and/or labor and employment counsel regarding all COVID-related employment issues, including vaccine mandates. For MEA members, the Hotline and a Member Legal Services attorney are available to provide this assistance.
*This Alert is provided for general informational purposes only and does not constitute legal advice.