As we previously reported, the Occupational Safety and Health Administration (OSHA) issued its Emergency Temporary Standard (ETS) on mandatory COVID-19 vaccines on Nov. 4, 2021. Since then, a number of lawsuits have been filed challenging OSHA’s ability to enforce this ETS. Following a stay of those lawsuits by the Fifth Circuit Court of Appeals, the cases will be consolidated, and the Sixth Circuit Court of Appeals will rule on the fate of the ETS. Regardless of how the Sixth Circuit rules, the case is likely to be ultimately decided by the U.S. Supreme Court.
Vaccine requirement on hold
Given the uncertainty regarding whether OSHA will be able to implement and enforce the ETS, OSHA has decided to stay its efforts regarding the mandatory vaccination ETS for now. OSHA published the following statement 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.
Because OSHA has no plans in the near future to either implement the vaccination requirement or enforce it, employers can feel relatively comfortable pausing their efforts to come into compliance with the ETS if they so choose. OSHA is likely to issue new deadlines for compliance after the Sixth Circuit rules.
What about state law?
Of course, employers still have the ability to implement a COVID-19 vaccine requirement on their own. However, employers need to be aware of their applicable state and local laws. Some states have enacted laws that prohibit employers from implementing policies that would require vaccination.
Does this impact federal contractors?
OSHA’s decision to pause implementation and enforcement of the ETS has no effect on vaccination requirements for federal contractors. Employers that hold qualifying federal contracts must still comply with mandatory vaccination requirements as specified in Executive Order 14042 and related guidance.
With the ever-changing nature of the various mandatory vaccine requirements, we strongly suggest employers reach out to their employment counsel to discuss their unique situations and current obligations.