In our November 15th issue, we addressed the COVID-19 vaccination or testing mandate in the Emergency Temporary Standard (ETS) of the U.S. Occupational Safety and Health Administration (OSHA). In brief, the ETS requires all covered employers of 100 or more employees to ensure that all their unvaccinated employees wear masks by December 5, 2021 and that by January 4, 2022, all employees are either fully vaccinated for COVID-19 or submit to weekly COVID-19 testing.
Mandate on Hold
Recently, the Fifth Circuit Court of Appeals, based in New Orleans, issued a preliminary injunction barring OSHA from implementing its mandate. As a result of the court order, OSHA has suspended all activities relating to the implementation and enforcement of its ETS pending further legal developments. Litigation over the legality of the mandate will continue in the Sixth Circuit Court of Appeals, based in Cincinnati, where challenges from across the country to OSHA’s ETS have been consolidated.
The litigation in the Sixth Circuit (and possibly the Supreme Court) will take some time before a definitive result is obtained. Accordingly, OSHA’s suspension may well mean that employers covered by the ETS have a reprieve of the upcoming December 5, 2021 deadline for implementing masking requirements and the January 5, 2022 deadline for employees to be fully vaccinated or submit to testing. Nonetheless, any reprieve is not guaranteed.
Given this legal uncertainty, there is no one size fits all approach for employers to take in response to OSHA’s vaccination/testing mandate. Some employers may decide to follow a more risky course and delay moving forward with a mandatory masking and vaccination/testing policy until there is a definitive court ruling. Other employers may decide to still move forward with implementing the masking and vaccination/testing requirements, especially if they believe it is in the best interests of the organization to do so. Accordingly, at this juncture, employers are well advised to consult with experienced employment counsel to discuss their individual situation in order to determine how best to proceed.
If you would like to obtain a copy of the Fifth Circuit’s opinion preventing OSHA from enforcing its mandate, or have any questions about how to proceed given the shifting legal landscape, please contact DiMuroGinsberg partner, Jonathan R. Mook at firstname.lastname@example.org.