By: Jonathan Vegosen
November 11, 2021
UPDATED 1/27/22: Two weeks after the United States Supreme Court’s decision to block the federal vaccine-or-test mandate for large private employers, OSHA has officially withdrawn the mandate effective Wednesday, January 26, 2022. OSHA will voluntarily dismiss cases related to the mandate that are currently pending in the Sixth Circuit Court of Appeals. The Biden Administration still urges business to implement vaccination requirements voluntarily.
UPDATED 1/14/22: On Wednesday, January 13, 2022, the Supreme Court of the United States blocked the Biden Administration’s vaccine-or-test mandate in a 6-3 decision, overruling the Sixth Circuit’s decision to lift the stay last month. The majority opinion reasoned: “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.” The Supreme Court’s decision, which comes just days after OSHA began enforcement of compliance deadlines, means that all requirements under the vaccine-or-test mandate for large private employers are once again on hold. But the story may not end there. This case came before the Supreme Court on a petition for emergency relief to stay enforcement of the mandate while the Sixth Circuit issues a ruling on the merits of the case. In other words, the parties challenging the mandate successfully petitioned the Supreme Court to temporarily halt enforcement of the mandate, but the case will now go back to the Sixth Circuit for a decision on the legality of the mandate. It remains to be seen, however, whether the Biden Administration will continue to fight in court or if it will withdraw the mandate in light of Wednesday’s ruling.
Prior to the Supreme Court’s decision, the Illinois Department of Labor filed Preemptory Rules adopting the federal vaccine-or-test mandate for private employers with more than 100 employees. The Illinois Department of Labor has decided to stay enforcement of its rule in light of the Supreme Court’s recent decision. As a reminder, employers may still institute vaccine/testing requirements if they wish, subject to (1) state laws prohibiting such requirements, and (2) providing religious, medical, and other accommodations that may be required under federal law. FVLD will continue to provide updates as the legal landscape changes.
UPDATED 12/22/21: On Friday, December 17, 2021, a three-judge panel of the Sixth Circuit Court of Appeals ruled to lift the stay on enforcement of the Biden Administration’s vaccine-or-test mandate in a 2-1 decision. Judge Jane Stranch, in her majority opinion, reasoned that “the harm to the government and the public interest outweighs any irreparable injury to the individual petitioners who may be subject to a vaccination policy.” The Sixth Circuit’s decision means that private employers nationwide with 100 or more employees must require a COVID vaccination or weekly COVID testing for their employees (see our FAQ below for more details on the requirements of the vaccine-or-test mandate).
OSHA issued an update on the enforcement of compliance deadlines in light of the uncertainty caused by the stay. The compliance deadline for all requirements under the mandate except for the mandatory COVID-19 vaccination or weekly testing requirement has been moved from December 5, 2021 to January 10, 2022. The compliance deadline for the vaccine mandate or weekly testing has been moved from January 4, 2022 to February 9, 2022.
Over 25 business groups have responded to the Sixth Circuit’s decision by requesting emergency relief from the Supreme Court to stay the mandate. Even if the mandate is ultimately struck down, however, as we noted in a prior newsletter, employers may still institute vaccine/testing requirements if they wish, subject to (1) state laws prohibiting such requirements, and (2) providing religious, medical, and other accommodations that may be required under federal law. FVLD will continue to provide updates as the legal landscape changes.
UPDATED 11/18/21: The Court of Appeals for the Sixth Circuit has been selected to hear the consolidated case challenging the Biden Administration’s vaccine-or-test mandate for large employers following a lottery conducted by the Judicial Panel on Multidistrict Litigation. The Sixth Circuit will decide whether to continue, modify, or lift the Fifth Circuit’s November 12, 2021 order staying the ETS and directing OSHA to stop implementation and enforcement pending further judicial review. No matter what the Sixth Circuit decides, the Supreme Court of the United States will likely have the opportunity for the final say on the ETS. For now, OSHA has “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation”, according to a statement on their website dedicated to the ETS. FVLD will continue to provide updates as the legal landscape develops.
UPDATED 11/15/21: On November 12, after we published this newsletter, the Court of Appeals for the Fifth Circuit reaffirmed its order staying the ETS and directed OSHA to stop implementation and enforcement pending further judicial review. While the Fifth Circuit’s order halts implementation, the story of the ETS is not over. Challenges to the ETS are pending in nearly every U.S. circuit court of appeals. As a result, the Judicial Panel on Multidistrict Litigation is likely to conduct a lottery to determine which circuit court of appeals will be assigned to continue, modify, or lift the Fifth Circuit’s order and , the Supreme Court of the United States may reserve the final say on the fate of the ETS. In light of the uncertainty, employers would be prudent to monitor the situation closely and FVLD will endeavor to provide updates as new legal challenges are filed and as rulings are made.
On November 5, 2021, under the direction of President Biden, the Occupational Safety and Health Administration (OSHA) issued its long-awaited Emergency Temporary Standard (ETS) requiring private employers with 100 or more employees to ensure that most of their workers be fully vaccinated or provide negative COVID-19 test results on at least a weekly basis. The ETS comes after employers and employees alike speculated for weeks over what the details would be. This newsletter addresses a number of questions that we are receiving from businesses about the ETS. We are also including some helpful links.
How are employees counted to determine whether an employer meets the 100-employee threshold for coverage under the ETS?
What date should employers use to determine whether they meet the 100-employee threshold?
Are certain employees or employers exempt from the 100-employee threshold?
Will employers subject to the ETS have to implement a mandatory vaccination policy?
How does testing for unvaccinated employees work?
What happens if an employee tests positive for COVID-19?
Will employers need to determine the vaccination status of each employee?
Are there exceptions to mandatory vaccination or weekly testing?
Will employers need to inform employees about the details of the ETS?
May employers require employees to use personal time or sick leave to receive a vaccine or to recover from its side effects?
When does the ETS go into effect and how long will it be in effect?
What will happen if an employer does not comply with the ETS?
When will the ETS become permanent?
The ETS is effective now as a temporary measure because of the serious danger that the coronavirus presents, but the ETS is not yet permanent. The public may submit comments until December 6, 2021 about whether OSHA should adopt the ETS as a final or permanent standard. Depending on the comments OSHA receives, it may revise the ETS before it adopts a final standard.
May states pass laws to prohibit or limit an employer’s ability to require vaccines for employees?
Have there been any legal challenges made to the ETS?
Yes. There have been challenges questioning the constitutionality of the ETS and OSHA’s authority to issue it. Moreover, staying abreast of the status of legal challenges to the ETS is just as important as understanding its requirements. As expected, the ETS hit a roadblock shortly after it became effective when the federal Court of Appeals for the Fifth Circuit issued an order blocking the ETS from taking effect nationwide. Challenges to the ETS and, more specifically, OSHA’s authority to issue it, are pending in multiple federal Courts of Appeal. For now, the fate of the ETS is up in the air. Courts will need to come to a decision soon, as the first major ETS deadline comes on December 6, 2021.
If challenges have already been made to the ETS, and if more challenges to it will be made, what should an employer do?
Employers should consult with their legal counsel about their specific circumstances. Generally, employers would be prudent to prepare to comply with the ETS to avoid penalties for noncompliance, if the ETS is upheld. FVLD will endeavor to provide updates as legal challenges are filed, developments unfold, and the landscape becomes more clear.
Are there any additional helpful links where one can learn more information?
Yes. In addition to those set forth above, here are a few more: