On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) requiring all private sector employers subject to OSHA jurisdiction with more than 100 employees and all state and local governments in states with OSHA approved State Plans, to require all employees to show proof of COVID vaccination or begin to submit to weekly COVID testing unless the employee was working fully remotely. The standard was immediately challenged in court and the Fifth Circuit Court of Appeals in New Orleans, LA issued a stay on the enforcement of the ETS days after it was promulgated. Because lawsuits were filed challenging the ETS in multiple jurisdictions, the government moved to consolidate all the cases and the consolidated docket was assigned by lottery to the Sixth Circuit Court of Appeals in Cincinnati, OH. As of the beginning of December, the government has requested that the Sixth Circuit lift the stay on enforcement and the Court has indicated that it will not rule on that request until December 10, 2021. This will impact the first deadline for compliance with the standard. On December 5, 2021, the rule calls for employers to have developed a vaccine policy, determine employee vaccination status, and provide leave for worker vaccination or recovery. As a result of the litigation, OSHA has announced that it has suspended enforcement of the ETS, pending the decision on the stay.
For employers, this means that the standard remains in place, but enforcement and the potential significant penalties associated with enforcement are not currently a threat to businesses. However, surveys of large businesses have shown that the increased rates of infection in some populous states along with the possibility of enforcement has been sufficient to drive a majority of business respondents to plan to require vaccines or already implement a vaccine requirement for employees. Consulting firm Willis Towers Watson states that many respondents to the survey stated that one in four businesses will require vaccines regardless of the OSHA ETS, while another third of businesses will require them if the ETS goes into effect. We will know more when the Sixth Circuit decides on whether or not to maintain the current stay on the ETS.
Separately the administration has also issued a mandate through The Centers for Medicare & Medicaid Services (“CMS”) that a majority of healthcare providers accepting funding from Medicare and Medicaid enforce a vaccine mandate for all employees without OSHA’s testing option. On Tuesday November 30, 2021, a federal judge in Louisiana issued a stay on that order, that stay will effectively postpone the enforcement of the CMS mandate nationwide. Meanwhile, another stay was issued on an administration requirement that all new federal contracts contain language requiring contractor employees to be fully vaccinated. That stay only applies in the states that brought the suit, Kentucky, Ohio and Tennessee. These new stays have yet to be combined with the OSHA litigation because the CMS and federal contract mandate do not offer a testing alternative, changing the nature of some of the legal questions involved, the cases may progress along separate tracks.
Jackson Kelly PLLC’s Workplace Safety and Health attorneys are tracking changes in the regulation and the related litigation closely to provide accurate up-to-date information and responsive guidance to our clients.