Employers Should Plan for Vaccine-or-Testing Rule While Litigation Ensues

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​A federal appeals court has temporarily blocked President Joe Biden's vaccine-or-testing policy for businesses with at least 100 employees. But covered employers should still prepare for the upcoming deadlines while litigation is pending, according to employment law attorneys.

On Nov. 5, the Occupational Safety and Health Administration (OSHA) published its highly anticipated emergency temporary standard (ETS) in the Federal Register. If the rule survives legal challenges, it will require covered businesses to ensure their employees get vaccinated against the coronavirus or wear a mask and test for COVID-19 on at least a weekly basis.

A day after publication of the rule, the 5th U.S. Circuit Court of Appeals temporarily suspended it "pending further action" by the court. The lawsuit was brought by state attorneys general and private employers that oppose the directive and claim that either OSHA exceeded its authority or the ETS is unconstitutional.

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"The future of the ETS remains uncertain due to pending legal challenges. While the final result is unknown, it will take weeks of planning for employers to comply with the ETS's deadlines," said Andrew Metcalf and Stephen Woods, attorneys with Ogletree Deakins in St. Louis and Greenville, S.C., respectively. "Accordingly, employers may want to continue preparing for the ETS as if it is going to take effect while litigation continues."

Attorneys with law firm Fisher Phillips also said employers should familiarize themselves with OSHA's requirements and prepare to implement the ETS if the stay is lifted and the emergency rule is revived. "We advise employers to spend the coming weeks preparing for the ETS as if it will take effect but waiting to implement its measures until the final judicial outcome is certain," the law firm recommended.

We've rounded up resources and articles from SHRM Online and other trusted outlets on the news.

Swift Action

The emergency stay halting the ETS was granted by a three-judge panel of 5th Circuit judges in New Orleans. The judges said the ETS raises "grave statutory and constitutional issues." The court plans to quickly consider whether to issue an injunction.

(The Wall Street Journal)

DOL Responds

OSHA is part of the U.S. Department of Labor (DOL), and DOL leaders responded quickly to the 5th Circuit's action. 

"The Occupational Safety and Health Act explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them," said Seema Nanda, the DOL's chief legal officer. "We are fully prepared to defend this standard in court." 

The 5th Circuit ordered the Biden administration to file initial legal papers by late Monday afternoon and is expected to move quickly to rule on whether the new policy can be enforced.

(SHRM Online)

OSHA's Authority

OSHA has the authority to issue emergency temporary standards only if it can show both of the following factors:

  • Employees are exposed to grave danger from the hazard.
  • The ETS is necessary to protect employees from that danger.

According to the Congressional Research Service, "[I]n the nine times OSHA has issued an ETS [prior to its COVID-19 health care ETS], the courts have fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case."

(SHRM Online)

Multiple Challenges

Similar cases have been filed with at least four other federal appeals courts, so employers can expect to see more rulings, which may follow the 5th Circuit and block the ETS or may side with the DOL and find that the ETS is legally sound. 

"With a patchwork of various legal rulings expected, there will ultimately be a unifying judicial order having the final say on this matter," according to Fisher Phillips. "Whether that ruling comes from the multidistrict litigation panel (an assembly of federal judges that manages certain kinds of national litigation spanning several jurisdictions) or the U.S. Supreme Court remains to be seen."

(Fisher Phillips)

Compliance Deadlines

On Nov. 5, the White House announced the following details about OSHA's ETS:

  • All unvaccinated workers must begin wearing masks by Dec. 6, according to OSHA, and provide a negative COVID-19 test on a weekly basis beginning Jan. 4.
  • Employers must pay employees for the time it takes to get vaccinated and recover from any side effects that prevent them from working.
  • Companies are not required to pay for or provide the tests unless they are otherwise required to by state or local laws or in labor union contracts.

"Not surprisingly, the ETS requires employers to establish written policies to implement the mandate-or-test requirements," said Jackie Gessner, an attorney with Barnes & Thornburg in Indianapolis. She noted that OSHA built in some limited coverage exceptions. For example, remote and outdoor workers are not required to comply.

Notably, the deadline for federal contractors to comply with vaccination requirements under Executive Order 14042 has been pushed back to Jan. 4 to align with OSHA's ETS. But the White House explained that OSHA's ETS will not be applied to workplaces that are covered by the federal contractor requirement or a new vaccination directive from the Centers for Medicare & Medicaid Services for health care workers at facilities that participate in Medicare and Medicaid programs. Therefore, "employers will not have to track multiple vaccination requirements for the same employees," the White House said.

(SHRM Online)

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