What does the Federal Court of Appeal’s Stay of the OSHA Vaccine Mandate Mean for Employers?

As outlined in our brief update last week, the Occupational Safety and Health Administration (OSHA) published an emergency temporary standard (“ETS”) late last week (what many are referring to as the “vaccine mandate”). The ETS requires employers with at least 100 employees to mandate their workforce receive Covid vaccines or test weekly.

On Friday several large employers filed suit in the Fifth Circuit Court of Appeals challenging the OSHA ETS. The Fifth Circuit issued a brief order on Saturday staying the ETS stating that “the petitions give cause to believe there are grave statutory and constitutional issues” with the ETS. The government has until today, Monday November 8, 2021 to respond to the request for a permanent injunction, and the challengers will respond by 5pm on Tuesday. From there, we will await a final decision from the Fifth Circuit. Although OSHA must refrain from enforcing the ETS until the Fifth Circuit decision, this could quickly change if the appeals court judges remove the stay in this matter, or in any of the several separate lawsuits filed in different courts challenging the ETS. A final binding and unifying determination likely will not be made for weeks or months.

What does this mean for employers:

• Employers should continue with preparing written policies, communications, and vaccine record collection in the event the stay is lifted in order to avoid OSHA financial penalties which could start as early as the December 5, 2021 ETS initial deadline.

• This court proceeding does not affect the CMS Health Care Staff vaccine rule. Employers of healthcare professionals and staff should continue to proceed under the assumption that all employees will need to be vaccinated by December 5.

If you have any questions on how this new rule affects you or your business please don’t hesitate to reach out: info@barbascremer.com. We are here to help you address the day to day questions of balancing business concerns, the law, and health and safety.