A new development has transpired regarding the Biden administration’s vaccine mandate rules for employers with more than 100 workers. OSHA recently posted the following notice on its website:
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.
The is the latest in a series of events that have unfolded on this developing story. For more information on the original mandate, read “New Vaccine Mandates to Affect Millions of Contractors” and “Vaccine Mandate for Certain Employers to Take Effect January 4.” For details explaining how and why a federal appeals court recently halted this mandate, read this article.
The fate of this mandate is still ultimately uncertain, pending further litigation. The case will be heard next by the Sixth Circuit Court and could potentially find its way to the U.S. Supreme Court.
Keith Wilkes, a labor and employment partner/shareholder at the national law firm Hall Estill, has been closely following this story and offering analysis on the announcement since it broke.
"OSHA is suspending its recently announced emergency standard requiring certain employers to mandate COVID-19 vaccinations for employees, or permit employees to undergo weekly testing. Last week, the federal Fifth Circuit Court of Appeals’ stayed enforcement of the emergency temporary standard (“ETS”), which would have mandated covered employees of private employers with 100 or more employees to be fully vaccination, or, if the employer chose, undergo weekly testing," Wilkes says. "Whether OSHA will reestablish deadlines for implementation and enforcement of the ETS depends on the anticipated decision of another federal appeals court, the Sixth Circuit. That circuit was chosen by a ping-pong ball lottery process to hear a consolidation of at least 34 legal challenges to the ETS from across the country."
According to Wilkes, covered employers need to stay informed on the legal status of the ETS. “If the mandate comes out of the federal appellate court process intact, you can count on OSHA immediately lifting its suspension, establishing new deadlines, and giving employers a whole lot to do in an anticipated short amount of time," he says.
For more in-depth reporting and analysis, read the recent article from CBS News.
