On November 4, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released the Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to mandate vaccines or require weekly testing and face coverings. On November 6, 2021, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit (which covers Texas, Louisiana, and Mississippi) temporarily “stayed” (meaning that it suspended enforcement of) the ETS. On November 12, 2021, the Fifth Circuit ordered a continuation of its stay of the ETS, directing OSHA to take “no steps to implement or enforce the Mandate until further Court Order.” Shortly thereafter, OSHA pronounced that while it “remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
As expected, many individuals, organizations, and states filed legal challenges to the ETS, which triggered an obscure process known as the “Multi-District Litigation lottery.” Where the same law is subject to many legal challenges in several different circuit courts, a “lottery” is held to determine which appellate court will oversee the consolidated appeals. On November 17, 2021, the U.S. Court of Appeals for the Sixth Circuit (which covers Kentucky, Michigan, Ohio, and Tennessee) “won” the lottery, meaning that it will decide the merits of the myriad legal challenges to the ETS. The immediate question is whether the Sixth Circuit will keep in place the Fifth Circuit’s stay on the ETS while the appeal plays out, which appears to be the most likely outcome.
All of this legal and procedural shuffling has left many employers wondering—what should we do now? For starters, while enforcement and implementation of the ETS is stayed, employers do not have a legal obligation to comply with its terms. However, notwithstanding these legal challenges—which largely focus on whether OSHA exceeded its constitutional rulemaking authority—many employers had already implemented, or were in the process of implementing, mandates consistent with the ETS. The stay of the ETS does not prohibit a private employer from issuing its own mandate. Moreover, many believe that even if the Sixth Circuit ultimately strikes down the initial ETS as an unconstitutional overreach, individual states will follow with their own mandates. We have already seen states implement such mandates in certain sectors, such as California’s first-in-the-nation vaccination mandate issued by the California Department of Public Health which requires healthcare workers to get vaccinated unless they qualify for an exemption. Finally, the challenges to the OSHA ETS and the current stay on enforcement do not impact other federal mandates, including Executive Order 14042 mandating vaccination for federal contractors and subcontractors, and the emergency regulation issued by the Centers for Medicare & Medicaid Services (CMS).
Employers who anticipate implementing a “vaccine or testing” mandate for its workforce—whether to be in compliance with the current or future version of the ETS, a state requirement, or as a matter of company policy—have many steps they can take while the legal challenges play out.
Foley will continue to monitor these rapidly changing legal developments provide updates as they unfold. If you have any questions about compliance, mandatory vaccination policies, or any related inquiries, please contact one of our Labor & Employment attorneys.