On November 4, 2021, the Occupational Safety and Health Agency (OSHA) issued its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) which requires employers with 100 or more employees to have their employees show proof of being fully vaccinated for COVID-19 or require unvaccinated employees to provide proof of a negative test each week. For additional information on the details of the ETS, please read this Special Alert from HR Works.
In response to the ETS, on Saturday, November 6, 2021, the Fifth U.S. Circuit Court of Appeals in New Orleans issued a stay, temporarily blocking the ETS, citing “grave statutory and constitutional issues”.
According to the Society for Human Resource Management (SHRM), the U.S. Department of Labor (DOL) responded quickly to the court action, stating, “the Occupational Safety and Health Act (OSHA) explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them”. OSHA also stated that they are “fully prepared to defend this standard in court.”
As ordered by the Court, the Biden administration had until 5 p.m. on Monday, November 8 to file initial legal papers responding to the request for a permanent injunction, and the Court is expected to move quickly to rule on whether the ETS can be enforced.
After both sides have filed briefs, the Court will decide whether to lift the temporary injunction, allowing the ETS to proceed as planned, or whether to grant a permanent injunction. OSHA could then take the case to the Supreme Court.
It should also be noted that a separate lawsuit against the ETS was also filed on Friday, November 5 in the Court of Appeals for the Eighth Circuit in St. Louis by Texas, Mississippi, South Carolina, Utah and 11 other Republican-led states.
Next Steps for Employers
It was expected that the ETS would be met with immediate legal challenges, and it is unclear if the stay will have major implications in unwinding of the mandate. Even so, employers should continue to prepare to comply should OSHA be successful in resolving the procedural issues with the mandate.
HR Works is continuing to monitor this topic and will provide updates once more information becomes available.