Two courts recently issued decisions relating to vaccination mandates: one court lifted the stay on the OSHA “vaccine or test” mandate for employers with 100+ employees, and another court denied the Biden Administration’s request to dissolve a nationwide stay on the federal contractor vaccine mandate. Both are explained further below.
A. OSHA’s Weekly Testing Or Vaccine Mandate Has Been Reinstated
On Friday, December 17, 2021, the United States Court of Appeals for the Sixth Circuit reinstated the requirement that employees at companies with 100+ employees be fully vaccinated or undergo weekly testing.
In short, the court held that OSHA has clear authority to regulate viruses and infectious diseases, and also has the authority to impose standards and regulations on employers to protect workplace health and safety, including the transmission of viruses. The court noted that OSHA may, when necessary, regulate hazards that co-exist in the workplace and in society but are at heightened risk in the workplace. K&S’s client alert regarding the ETS and its requirements can be accessed here.
On the heels of this court decision, OSHA announced that, to provide employers with enough time to comply with the ETS, it will not: (a) issue citations for noncompliance with any requirements of the ETS before January 10, 2022; and (b) issue citations for noncompliance with the ETS’s testing requirements before February 9, 2021, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” OSHA also promised to “work closely with the regulated community to provide compliance assistance.”
Within hours, dozens of groups petitioned the United States Supreme Court for a new emergency stay. While the situation is still evolving, employers should both plan, and prepare, to comply with the ETS—which for now, has been reinstated. To that end, employers that paused drafting their company policies to comply with the ETS should dive into such drafting once again and decide whether they will implement mandatory COVID-19 vaccination, or weekly testing.
B. The Stay on the Federal Contractor Vaccine Mandate Remains in Place
As explained in K&S’s December 10, 2021 client alert, there is a nationwide injunction against enforcement of the vaccine mandate applicable to federal contractors and subcontractors. This means that, at least for now, the federal contractor vaccine mandate is blocked. That client alert can be found here.
On December 17, 2021, the United States District Court for the Eleventh Circuit denied the Biden administrations’ request to dissolve the injunction. There is an expedited schedule for briefing on the merits of the case, which will conclude in late January. At this juncture, it is unclear how this case will be decided, or if it will make its way up to the United States Supreme Court—but at least for now, the federal contractor vaccine mandate has been blocked.
We will closely monitor these cases and the legal challenges that the Biden Administration’s vaccine mandates are facing so that we can continue to provide updated information. The legal landscape can quickly develop and change, and therefore, employers are encouraged to contact a K&S employment attorney if questions arise.
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