OSHA Suspends Vaccine Mandate Activities

The Occupational Safety and Health Administration (OSHA) has suspended activities related to the implementation of the federal COVID-19 vaccine mandate.

Just days after OSHA issued the emergency temporary standard (ETS) regarding the vaccine mandate in early November, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay the measure. The court ordered that OSHA “take no steps to implement or enforce” the ETS until further court order.

The federal vaccine mandate applies to employers with 100 or more workers. If it eventually goes into effect, it would require covered employers to ensure employees are vaccinated or submit to weekly COVID-19 tests, as well as requiring employers to give workers paid time off to get shots and recover from side effects.

What’s Happening With the Vaccine Mandate?

Following the court action and suspension of activities related to the vaccine mandate, petitions for review of the ETS are ongoing.

Most expect the U.S. Supreme Court to ultimately weigh in on the ETS, meaning the Dec. 5, 2021, and Jan. 4, 2022, deadlines for covered employers are likely in doubt. For reference, those requirements were:

• Dec. 5, 2021: Employers would begin providing paid leave for shots and recovery, and require unvaccinated workers to wear masks
• Jan. 4, 2022: Employees covered under the ETS would need to have their final vaccination dose

Meanwhile, the Biden administration has asked a federal appeals court to lift the order that put a pause on the ETS, and also requested the court at least allow masking and COVID-19 testing requirements for unvaccinated workers until the litigation concludes.

Also in the news this week, a federal court in Missouri on Nov. 29, 2021, blocked the enforcement of the mandate for health care workers at federally funded facilities in 10 states.

Federal Vaccine Mandate Background

President Biden in September 2021 directed the U.S. Department of Labor to issue an ETS regarding the vaccine mandate. It would require covered employers to implement a written policy for employees who come into the workplace:

• Employees must be fully vaccinated
• Employees who are not fully vaccinated must provide results of weekly COVID-19 testing and wear a mask

At the time, White House officials said the ETS would preempt state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks or testing.

Also, should the ETS go into effect, employers would be required to provide employees with up to four hours of paid leave for each vaccination dose, as well as “reasonable time and paid sick leave” (the amount is not fully specified) to recover from the side effects following each dose.

The mandate would also include notice, reporting and recordkeeping requirements for employers.

Conclusion

Despite the uncertainty regarding federal vaccine mandate, employers may consider what they need to do should the courts eventually allow it to go into effect. Plus, mandates in other jurisdictions are worth looking at to ensure compliance for companies that operate across the U.S.

Time will tell whether large employers will have to comply with the federal vaccine mandate, and how things shake out in the courts will determine where HR and compliance teams will have to focus their efforts in 2022.

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.