As of today, OSHA announced that it “has suspended activities related to the implementation and enforcement of the ETS [Emergency Temporary Standard] pending future developments in the litigation.” A link to the announcement can be found here. The announcement came in response to the decision from the 5th Circuit Court of Appeals ordering OSHA to essentially stand down for the time being.
Further legal developments are surely in store, but we will not discuss those procedures in detail here. The question now is how should employers respond in the interim?
First, it is important to determine whether or not you are subject to the OSHA mandate or the mandates applicable to federal contractors or healthcare service providers. The mandates for federal contractors and healthcare providers are not affected by this litigation. If you are subject to the OSHA mandate, you have a decision to make.
One option is to halt implementation of your policy (either mandatory vaccination or vaccinate/testing) pending further clarification from the courts. This option is a bit risky in that the mandate could survive legal challenge in the coming weeks and immediately take effect on the original timeline (December 6/January 4). That could leave you scrambling and force testing upon you for your unvaccinated employees. Everyone is hopeful that if the mandate does survive challenge, OSHA will revise the timeline, but that is uncertain. This option is worth considering for companies with a low workforce vaccination rate and have real labor shortage concerns with implementation.
Option two would be to press forward with implementing your policy. If the mandate survives, your business will be in an optimal position for compliance, even if the timeline is not revised. You may think implementing the policy is a good idea regardless of legal requirements. However, companies pressing forward should be prepared for increased pushback from employees now that the mandate is on hold.
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If you have questions about this topic or other employment law matters, please contact Perry, Chris, or the HSB Employment Law practice team.