As Litigation Moves Forward, OSHA Suspends Enforcement Of Vaccine Mandate
On November 17, the Occupational Safety and Health Administration (OSHA) announced that it is suspending enforcement of the Biden administration’s Emergency Temporary Standard (ETS) due to ongoing litigation.
As a reminder, the ETS calls for businesses with 100 more employees to ensure their workforces are vaccinated against COVID-19, to implement masking requirements, and to require testing in lieu of vaccination.
OSHA cited a federal appeals court ruling against the ETS as the reason for its decision.
Other litigation also will move forward quickly. More than 30 cases challenging the mandate have been consolidated and will soon be heard by the Sixth U.S. Circuit Court of Appeals. According to MSCI’s partners at the National Association of Manufacturers, it is impossible to predict how the Sixth Circuit — or the Supreme Court if it hears the case — will rule. Deadlines to develop compliance policies (December 6, 2021) and ensure employees are vaccinated (January 4, 2022) could hold, get pushed back, or be struck down altogether by the courts. Individual business must decide how they want to approach the legal uncertainty.
In the meantime, MSCI will continue to report on how the litigation proceeds in Connecting the Dots and through other means, if necessary.
While the courts do their work, Republicans in Congress are working to oppose the vaccine mandate. Sen. Mike Braun (R-Ind.) and Rep. Fred Keller (R-Penn.) have introduced a Congressional Review Act (CRA) challenges to the rule in their respective chambers. All 50 GOP U.S. senators and 173 U.S. representatives have cosponsored their respective joint resolutions. The CRA allows Congress to challenge regulations issued by the executive branch. If these resolutions are approved — a prospect that is not likely since Republicans do not control Congress and since the resolution would require the president’s signature — the ETS would be nullified, and OSHA would not be able to issue any substantially similar regulation in the future.
Lawmakers in several states also are working to enact legislation oppose the mandate or to loosen COVID-19 workplace vaccination requirements. Florida, for example, is working on legislation that provides new exemptions for workers with health issues, who have a religious conflict with vaccination, who can provide proof of immunity, or who are willing to submit to “periodic testing” or wear personal protective equipment provided by their employer. Idaho lawmakers soon could consider similar legislation.
Ultimately, it is likely that the legal challenges to the OSHA ETS will need to be settled by the U.S. Supreme Court.
As Connecting the Dots has reported before, here are several things to know if the mandate takes effect:
- By December 5, 2021, eligible employers must develop a program to verify the vaccination status of their employees and maintain records of vaccination status and test results.
- Workers who express a sincerely held religious belief or can’t be vaccinated for medical reasons can be offered a testing option instead.
- The 100-plus employee threshold is determined per company rather than per location and covers all U.S. employees. An employer is covered if, at any time during the period the ETS is in effect, they have at least 100 employees.
- Employers must provide four hours of paid leave for each vaccination dose and allow “reasonable” time off to recover from side effects.
The Department of Labor has provided several fact sheets and FAQs.
The U.S. Chamber of Commerce also has hosted a special vaccine mandate briefing, which interested organizations can watch here, and has created an easy-to-digest document detailing the facts on the ETS for COVID-19 vaccinations, which can be found here. MSCI also plans to host a webinar on the mandate in the near future. Stay tuned for more information.