The Uncertain Fate of OSHA’s ETS Mandating Employer Vaccination Policies

What is the status of OSHA’s ETS? As Lake Effect previously reported, OSHA issued an Emergency Temporary Standard earlier this month requiring employers with 100 or more employees to implement mandatory vaccination or testing/masking policies. Read our prior blog for a full discussion of OSHA’s guidelines and requirements. In response to the ETS, employers across the country began to prepare policies in advance of the initial December deadlines.

Almost immediately, states, employers, and other groups across the country filed lawsuits challenging OSHA’s authority to issue the ETS. On November 5, 2021, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit temporarily halted the mandate. On November 12, 2021, the full 5th Circuit Court of Appeals issued an order barring OSHA from implementing and enforcing the ETS pending further court proceedings. In response, OSHA announced that it had “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” In the latest legal development, the Judicial Panel of Multidistrict Litigation consolidated at least 34 lawsuits across the country challenging the ETS (including the 5th Circuit case) before the 6th Circuit Court of Appeals based in Cincinnati. A three-judge panel from the 6th Circuit will be randomly assigned to hear all pending legal challenges to OSHA’s ETS.

What does this mean for employers? For now, OSHA will cease implementation and enforcement of the ETS, and prior December and January deadlines are no longer in effect pending further court action. However, this does not necessarily mean employers should delay or stop planning for vaccination policies. Keep in mind:

  • The Biden Administration and OSHA are confident in OSHA’s authority to issue workplace safety-related regulations, and they will vigorously defend the enforceability of the ETS.
  • Despite the 5th Circuit’s initial stay, the 6th Circuit could reject legal challenges and uphold OSHA’s authority to issue the ETS.
  • Regardless of the outcome of legal challenges to the ETS, employers of any size have the discretion to implement mandatory vaccination and/or testing/masking policies in their workplaces, as long as they comply with Title VII and ADA accommodation requirements.
  • Employers who are federal contractors or health care providers must comply with vaccination mandates under the Federal Contractor Mandate and CMS Medicate Omnibus Staff Vaccine Mandate Interim Final Rule. These mandates are unaffected by the current ETS litigation.

On A Related Note, You May Have Collective Bargaining Obligations. On November 10, 2021 (prior to consolidation of country-wide lawsuits challenging the ETS) the National Labor Relations Board (NLRB) Acting Associate General Counsel issued a memorandum outlining employers’ obligations to bargain with unions about issues related to the ETS. She confirmed that covered employers must bargain with unions about whether to implement a vaccine mandate or implement a vaccine and testing/masking policy. In addition, employers must bargain about the effects of the ETS policy on employees, including whether to provide leave to employees who test positive or how to discipline employees who refuse to comply with an ETS policy. Employers with represented employees should keep these obligations in mind as they consider and implement any vaccination policy.

Contact your partners at Lake Effect for help navigating vaccination issues in the workplace during this uncertain time. We will continue to closely monitor all legal developments relating to the ETS.

Lake Effect is here to answer your questions about federal, state, and local regulations that impact employers across all industries. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

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