By; Cristina N. Hyde, JD
On November 5, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA), published the Emergency Temporary Standard (ETS) called for in President Biden’s six-pronged, comprehensive national strategy for the continued fight against COVID-19. The ETS establishes COVID-19 vaccination and testing requirements for private employers with 100 or more employees. However, the mandate was promulgated without the notice and comment period which typically precedes such regulatory action.
THE ETS mandates that all employers with 100 or more employees either require workers to get a COVID-19 vaccine or produce a weekly negative test result before reporting to work. As predicted in our prior blog post, the controversial directive was immediately met with a variety of challenges including state legislation attempting to limit the ability of employers to mandate vaccines and lawsuits challenging both the constitutionality of the requirements and the scope of OSHA’s statutory authority.
On November 6, 2021, the United States Court of Appeals for the Fifth Circuit issued a temporary stay which was quickly followed by an order for a permanent stay pending judicial review of the underlying motion for a permanent injunction. That order was nationally recognized and OSHA froze all activities related to the enforcement and implementation of the ETS pending the outcome of the litigation. The matter was thereafter transferred to the United States Court of Appeals for the Sixth Circuit and consolidated with similar challenges that had been filed in the remaining circuit courts throughout the country.
The Sixth Circuit is currently poised to hear arguments on this multi-circuit policymaking challenge and, as a threshold issue, it will decide whether to modify, revoke or uphold the Fifth Circuit’s stay. While it may seem unlikely, it is therefore still possible that the stay could be lifted prior to the ETS’ December 6, 2021, effective date. With this in mind, it would be wise for businesses to continue efforts to prepare for compliance while awaiting the final outcome of the litigation. The full text of the ETS along with Fact Sheets and Templates to support implementation can be found on OSHA’s website.
Campanella Law Office will continue to monitor the litigation and provide updates as necessary. Meanwhile, if you have specific questions related to your business or employment, Contact Us.