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OSHA temporarily halts implementation of Biden's vaccination mandate

Thanks to both the Spencer Fane and Armstrong Teasdale law firms for their contributions to this story.

November 16, 2021 - OSHA announced the vaccination/testing/masking mandate on November 4, 2021. The Emergency Temporary Standard (ETS) would mandate large employers (100 or more employees) to require their employees to be vaccinated against COVID-19 or submit to weekly testing and mandatory masking.

Upon publishing the ETS in the Federal Register on November 5, 2021, challengers filed suit in the Fifth Circuit Court of Appeals, as well as in other Courts of Appeals on the same day. Shortly after challengers filed suit, the Fifth Circuit temporarily stayed the ETS, finding “cause to believe there are grave constitutional statutory and constitutional issues” with the mandate, according to the Armstrong Teasdale law firm.

OSHA has been forced to temporarily halt the ETS. According to the Spencer Fane law firm, OSHA has stated that although it “remains confident” that it had the required authority to issue the ETS, it was suspending activities related to the implementation and enforcement of the ETS pending future developments in the litigation. Prior to OSHA’s statement, there had been some confusion over whether the Fifth Circuit’s decision applied nationwide, or only in the states that the circuit covers (Texas, Louisiana, and Mississippi).

The Fifth Circuit’s Order stated that to be able to uphold the ETS, OSHA must show that the emergency regulation is “necessary” to protect employees from “grave danger” due to exposure to “substances or agents determined to be toxic or physically harmful.” Which, according to the Court, OSHA failed to do. The Court also challenged OSHA’s designation of COVID-19 as an “emergency,” given “that the entire globe has endured [COVID-19] for nearly two years.”

While this may seem like good news for many employers, the litigation regarding the vaccine/testing/masking mandate ETS is still ongoing, making the outcome far from certain. If the ETS is upheld, it is excepted that OSHA will "restart the clock" in regards to the ETS deadlines in order to give employers about the same amount of time for compliance as was granted to them in the ETS.

Spencer Fane suggests employers may be well advised to continue moving forward with plans to collect information, implement new policies, and communicate with employees regarding changes in the workplace.

Armstrong Teasdale suggests employers begin efforts to comply with the more time-consuming elements of the ETS, such as determining the vaccination status of employees and developing a written program, to include procedures for evaluating medical and religious accommodation requests.

We will continue to monitor the situation closely and keep you updated.

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