A federal appeals court has halted the federal Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) implementing President Biden’s soft vaccine mandate (i.e., vaccine or testing). The ETS would require employers with 100 or more employees to ensure their employees are fully vaccinated against COVID-19 or provide documentation of a negative COVID-19 test at least every seven days. We provide a summary description of key aspects of the ETS below.
Within days after OSHA published the ETS, attorneys general from several states and several businesses and advocacy groups filed lawsuits to fight the mandate in court. On November 6, in response to one of the lawsuits, the Fifth Circuit granted a temporary injunction to stay enforcement of the ETS while the court considers its validity. The court’s decision does not specify whether it applies nationwide, and it may apply only to the parties to the lawsuit (the states of Louisiana, Mississippi, Texas, South Carolina, and Utah). The Fifth Circuit court ordered the parties to submit their briefs on November 8 and 9 and promised an expedited decision.
The Fifth Circuit case is one of many lawsuits that have or will be filed in the coming days (at least three other circuit courts of appeals have similar challenges pending), and it is highly likely the U.S. Supreme Court will eventually be asked to consider the issue.
In the meantime, states that have their own state-OSHA plan may proceed with drafting state-equivalent safety rules. (States with state-OSHA plans are required to adopt their own emergency ETS “at least as effective” as the federal ETS within 30 days.) These states, which include Washington, Oregon, California, and Alaska, could elect to enact a new safety ETS even before a final decision is issued on the validity of the federal ETS. These state ETS rules can be more expansive than the federal ETS, and will have their own deadlines and compliance dates. For example, state emergency plans could apply the soft vaccine mandate to employers with 50 or more employees.
OSHA cannot enforce the vaccine mandate in any jurisdiction where an applicable injunction is in place. However, if and when the injunctions are lifted, employers will be required to distribute written policy and certain notices to employees by December 6, unless OSHA extends the deadline or the courts take longer to issue a final decision. Prudent employers will start taking action now by:
To assist employers with their planning efforts, below are some key details of the ETS.
Lane Powell’s team of attorneys is here to help you develop and implement a vaccination and testing strategy that best supports your business. For more information or assistance, contact Beth Joffe or Christine Thelen.
Lane Powell’s Katheryn Bradley and Shirley Lou-Magnuson will be discussing the soft vaccine mandate in their webinar, “New Strategies for Managing Workers During the Pandemic Era (Part One)” on November 10, 2021, at 10 a.m. Click here to register.
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