After the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) on mandatory COVID-19 vaccines on November 4, 2021, a number of lawsuits were filed challenging the agency’s ability to enforce the rule. After the U.S. 5th Circuit Court of Appeals stayed the cases (or put them on hold), the 6th Circuit was selected by lottery to decide the ETS’s fate. Regardless of how the Cincinnati-based appeals court rules, the matter is likely to be decided ultimately by the U.S. Supreme Court.
Vaccine Requirements on Hold
Given the uncertainty over whether OSHA will be able to implement and enforce the ETS, it decided to suspend efforts to enforce the vaccine requirements for the time being. The agency 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). 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 implement or enforce the vaccination requirements, employers can feel relatively comfortable pausing their efforts to comply with the ETS if they so choose. The agency is likely to issue new deadlines for compliance after the 6th Circuit rules.
What About State Law?
Of course, employers may still implement a COVID-19 vaccine requirement on their own. Be aware, however, of any applicable state and local laws. Some states have enacted laws prohibiting employers from enacting policies that would require vaccination.
No Relief for Federal Contractors
OSHA’s decision to pause the ETS’s implementation and enforcement has no effect on vaccination requirements for federal contractors. If your business holds a qualifying federal contract, it must still comply with mandatory vaccine rules as specified in Executive Order 14042 and related guidance.
Bottom Line
With the ever-changing nature of the various mandatory vaccine requirements, we strongly suggest employers reach out to employment counsel to discuss their unique situations and current obligations.
.Jourdan Day is an attorney with Porter Wright Morris & Arthur LLP in Columbus, Ohio. You can reach her at jday@porterwright.com.