After OSHA issued its temporary standard for Covid-19 mandates, i.e., mandate or test rule, a federal appeals court issued an order blocking the standard from taking effect nationwide. The federal court cited to “grave statutory and constitutional issues” with the OSHA mandate. As a result, employers are left wondering how to handle their workforce.
As recently reported, OSHA issued an Emergency Temporary Standard (“ETS”) to minimize the risk of COVID-19 transmission in the workplace. The ETS covers all employers with a total of 100 or more employees with a few exceptions. Generally, covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy with an exception for employers that instead adopt a policy requiring employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work.
A day after OSHA’s new ETS was issued, several parties filed suit in the Court of Appeals for the Fifth Circuit requesting the Court to find: (1) that the ETS exceeded the scope of OSHA’s authority; and (2) that the ETS is unconstitutional. The parties also requested the Court to issue a stay, i.e., halt the ETS, until oral argument can take place. (Similar lawsuits have been field in the Sixth, Seventh, Eighth, and Eleventh Circuits). The Fifth Circuit issued a stay indicating the parties believe there are “grave statutory and constitutional issues” with the ETS. The Fifth Circuit ordered the parties to submit written responses almost immediately, which means we should receive a ruling soon.
The legal community expects to see multiple rulings from the various courts, which will require uniformity at some point. We expect a unifying court order to come from either the multidistrict litigation panel (a group of federal judges who manage national litigation) or the U.S. Supreme Court.
What does this mean for employers?
Employers should review the OSHA ETS and be prepared to implement it, if the stay is lifted. The earliest effective date for any of the ETS requirements is December 5, which includes the need for you to have a vaccination policy and various other technical standards in place.