OSHA’s Large Employer Vaccine Mandate in Limbo Following Court Action: Ten Steps Employers Should Still Take Now
On November 5, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) giving companies with at least 100 employees two choices: 1) require all employees except those with religious or medical accommodations to become fully vaccinated (which does not include receiving a booster shot) before January 4; or 2) require employees who are not fully vaccinated to begin wearing a face covering when indoors or when occupying a vehicle with another person for work purposes after December 5 and undergo weekly COVID-19 testing after January 4.[i] Through the ETS, OSHA intends to preempt any State or local requirements that ban or limit an employer’s authority to require vaccination, face-covering, or testing.
In response, over 25 states joined four circuit court petitions for review, attempting to overturn the ETS. A lottery will determine which circuit court is selected to hear the cases, consolidated into one action. Other states and organizations have a ten-day window from the issuance of the ETS to file a petition in other circuits so they can be included in the lottery.
On Saturday, the United States Court of Appeals for the Fifth Circuit issued a nationwide stay of the rule in response to a petition for review.
What is the impact of the court’s decision to stay the rule?
Since the lottery has not yet taken place, the case may be transferred to another circuit, which can continue or lift the stay. In the meantime, the Fifth Circuit case will continue. After briefing and arguments, the court will decide whether to extend the injunction. OSHA will almost certainly appeal any unfavorable ruling to the United States Supreme Court. Nonetheless, given the unknowns and quickly approaching ETS implementation deadlines, employers are advised not to wait for the legal battles to conclude before preparing for the ETS.
What should employers do now?
[i] See COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (to be codified at 29 C.F.R. pts. 1910, 1915, 1917, 1918, 1926, and 1928).
[ii] Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, THE WHITE HOUSE, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-COVID-safety-protocols-for-federal-contractors/ (Sept. 9, 2021). Likewise, the new rule does not change the requirements for federal employees. Federal employees are required to be vaccinated through a separate Executive Order. See Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, The White House, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-requiring-coronavirus-disease-2019-vaccination-for-federal-employees/ (Sept. 9, 2021)
[iii] Dept. of Labor, COVID-19 Healthcare Emergency Temporary Standard https://www.osha.gov/sites/default/files/covid-19-healthcare-ets-reg-text.pdf (last visited June 11, 2021). The CDC also has issued separate updated guidance that applies to all healthcare personnel while at work and residents while they are being cared for in a healthcare setting. Updated Healthcare Infection Prevention and Control Recommendations in Response to COVID-19, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/hcp/infection-control-after-vaccination.html (Apr. 27, 2021).
[iv] COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402 (Nov. 5, 2021) (to be codified at 29 C.F.R. pts. 1910, 1915, 1917, 1918, 1926, and 1928) at 61421, citing (Psichogiou et al., September 13, 2021; Wei et al., July 5, 2021; Cavanaugh et al., August 13, 2021). The study also found that fully vaccinated individuals have an immune response (i.e., antibodies and neutralization) well above the levels observed in unvaccinated, previously-infected individuals. Id.
[v] Employers must also ensure that employees who are not fully vaccinated and do not report during a period of seven or more days to a workplace where other individuals are present are: (1) Tested for COVID– 19 within seven days prior to returning to the workplace; and (2) provide documentation of that test result upon return to the workplace. Id. at 61450.
[vi] The National Labor Relations Act obligates employers to bargain with existing unions over wages, hours, and terms and conditions of employment. 29 U.S.C. § 158 (a)(5).
[vii] 42 U.S.C.A. § 12112(b)(5)(a) (2009).
[viii] What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, EEOC.gov, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitationact-and-other-eeo-laws (last visited December 16, 2020).
[ix] 29 U.S.C.A. §§ 701, 703(a)(1) (2014).
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