On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced its Emergency Temporary Standard (ETS) to address mandatory COVID-19 vaccination and testing for the workplace. The ETS requires affected employers to comply with most provisions by Dec. 6, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees (firm- or company-wide count). State plans will have 30 days to adopt the federal ETS or implement their own vaccination standard.
Federal Court Blocks OSHA COVID-19 Vaccination and Testing ETS
On Saturday, Nov. 6, 2021, the Fifth Circuit Court of Appeals ordered a temporary stay on the ETS. The order effectively prevents enforcement of this ETS until a final decision regarding the legality of this standard is published. On Friday, Nov. 12, the Fifth Circuit affirmed its hold on the ETS.
This is not the end of the judicial review road for the vaccine rule. Challenges to the rule were filed in multiple federal circuit courts across the country. When there are multiple filings like these, a multi-circuit “lottery” system is utilized for purposes of consolidation and clarity. All of the appeals are consolidated before the circuit court selected in the blind lottery, which will then hear the challenge to the rule.
If the Fifth Circuit is not selected in the lottery, then another appeals court will have an opportunity to issue the controlling decision here (which could, among other things, lift the Fifth Circuit’s stay). After that, regardless of the outcome, the Supreme Court will likely have the final word.
Impact on Employers
While the temporary stay effectively prevents enforcement of the ETS until a final decision on the legality of the standard is published, the law has not been permanently delayed or vacated officially. As a result, affected employers should continue in their efforts to understand and prepare for compliance with the various provisions of the ETS.
If you have specific questions about how the ETS may affect your company specifically, consult your legal counsel.
If you have questions related to this update, please contact your North Risk Partners advisor. Don’t have an advisor? No problem. We’ll help you find one.
This regulatory update is not intended to be exhaustive nor should any discussion be construed as legal advice. Readers should contact legal counsel for legal advice.
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