As every large employer should know by now, on November 4, 2021, Occupational Safety and Health Administration (OSHA), Department of Labor (DOL), announced the much-anticipated Emergency Temporary Standard (ETS). The interim rule, which was officially published on November 5, would require large employers (100 or more employees) to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt of a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. While the ETS is effective on November 5, 2021, it gives “covered employers” until December 5, 2021, to adopt their preferred written policy. Employees must be required to comply with those requirements by January 4, 2022. For more information on the ETS, please read OSHA Issues Emergency Temporary Standard on COVID-19 Vaccinations and Testing Mandates for Employers with 100 or More Employees, where my colleagues Amy Robinson and Rick Lentini have discussed the key provisions of the newly issued ETS.
This much-anticipated announcement sent employers and their attorneys in action to develop workplace policies, including vaccine-or-testing and return-to-work policies.
WHAT CHANGED?
Two days later, on November 6, a three-judge panel on the United States Court of Appeals for the Fifth Circuit, granted a stay of the ETS—that is, it put the interim rule on hold pending further litigation.
The Fifth Circuit wrote that “Because the petitions give cause to believe there are grave statutory are constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.” The stay order is not a final ruling on the validity of the ETS but will halt its implementation at least temporarily.
On November 8, the U.S. Department of Justice (DOJ) responded, signaling that it will not seek immediate review from the U.S. Supreme Court, which could be because the ETS’s provision does not kick in until January 4. Citing 12 legal challenges to the ETS in six federal Circuit Courts, filed by 26 states and several private employers and organizations, and an appellate procedure rule regarding multi-circuit litigation involving review and enforcement of agency order, 28 U.S.C. § 21121, the DOJ’s letter states that the DOJ expects a “multi-circuit lottery” to take place on or about November 16, 2021. In the DOJ’s view, this process will result in the following: (1) the random selection of a single Circuit Court and (2) the consolidation of all legal challenges into one case. The designated Circuit Court will then be responsible for deciding these petitions and considering—or reconsidering—any stay orders. In addition, in a separate 28-page filing, the DOJ argued that the ETS was necessary to protect American workers from COVID-19, which the DOJ called a “workplace hazard,” and is well-grounded in law.
In the coming days and weeks, we should see additional rulings from the federal courts of appeal. And until there is a final court order, the fate of the ETS is unknown. Even though OSHA must wait to enforce the ETS until a stay is over, the status of the stay could change at a moment’s notice.
WHAT SHOULD EMPLOYERS DO NOW?
At this time, employers should consider continuing to prepare for the ETS, because it will likely take weeks for employers to comply with the upcoming deadlines in the ETS and OSHA may not look kindly on non-compliant employer who waited to implement the mandate-or-test rule until there was a final court ruling.
STAY TUNED
Also unknown is how, if at all, this stay will impact the states from moving forward with their own plans to adopt equivalent, or greater, protections in those states with approved OSHA state plans. Recall, under the ETS as initially proposed those states had 30 days from November 5, 2021 to adopt their own plan.
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1 This federal law requires agencies, boards, commissions, and officers to notify a court of appeals panel when one of their orders is challenged in at least two federal courts of appeal within ten days of its issuance.
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