OSHA suspends activities related to vaccine mandate
The Occupational Safety and Health Administration has announced it has suspended activities related to the implementation and enforcement of the agency’s COVID-19 Vaccination and Testing Emergency Temporary Standard.
On Nov. 12, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, which was published on Nov. 5.
According to the agency’s website, the court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order."
“While OSHA 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,” according to a statement on the OSHA website.
The ETS on Vaccination and Testing, filed in the Office of the Federal Register on Nov. 4, and it became effective when it was published on Nov. 5. Written comments on any aspect of the ETS must be submitted by Dec. 6 in Docket number OSHA-2021-0007.
Chuck Conner, president of the National Council of Farmer Cooperatives, said in a statement that the OSHA action to suspend the ETS should be followed by consideration of what changes are needed in the regulation.
“ OSHA should use this opportunity to further consider input from stakeholders so that, if the court ultimately lets the agency move forward with the ETS, it can implement the policy in a more measured way that protects the integrity of the agri-food supply chain and its workforce,” Conner said in the statement.
One lawyer said much remains to be decided.
"OSHA is suspending its recently announced emergency standard requiring certain employers to mandate COVID-19 vaccinations for employees, or permit employees to undergo weekly testing," Keith Wilkes, labor and employment partner/shareholder at the national law firm Hall Estill, said in a release. "Last week, the federal Fifth Circuit Court of Appeals’ stayed enforcement of the emergency temporary standard (“ETS”), which would have mandated covered employees of private employers with 100 or more employees to be fully vaccination, or, if the employer chose, undergo weekly testing."
"Whether OSHA will reestablish deadlines for implementation and enforcement of the ETS depends on the anticipated decision of another federal appeals court, the Sixth Circuit," Wilkes said. "That circuit was chosen by a ping-pong ball lottery process to hear a consolidation of at least 34 legal challenges to the ETS from across the country."
"The Sixth Circuit is generally not regarded to be as conservative as the Fifth Circuit, he said, but it’s a close second. Eleven of the 16 judges on the Sixth Circuit Court of Appeals were nominated by a Republican president, however, only three judges will sit on the panel that decides the consolidated case," Wilkes said.
"The matter will most likely be decided by the United States Supreme Court. Although the highest court has a conservative majority, it has yet to interfere with COVID-19 vaccination mandates," Wilkes said in the release.
He said covered employers need to stay abreast of the legal status of the ETS.
"If the mandate comes out of the federal appellate court process intact, you can count on OSHA immediately lifting its suspension, establishing new deadlines, and giving employers a whole lot to do in an anticipated short amount of time," Wilkes said.
