by Marti Cardi, Esq. - Vice President, Product Compliance
& Lana L. Rupprecht, Esq. - Director, Product Compliance
November 08, 2021
On Friday, we sent out an update on OSHA’s Vaccination and Testing Emergency Temporary Standard (“ETS”) which requires private employers with 100 employees or more to implement employee vaccination or weekly testing requirements by January 4, 2022. This blog can be found here and the ETS is here.
Shortly after its publication in the Federal Register, various states, businesses, and private advocacy groups filed legal actions against the government challenging the ETS in the 5th, 6th, 8th, and 11th U.S. Circuit Courts of Appeals. These actions generally assert that the ETS exceeds OSHA’s statutory authority and that implementation of the ETS will cause irreparable harm (i.e., employee resignations, “ruinous fines” and “employees taking an irreversible vaccine”).
On Saturday, November 6, 2021, the 5th Circuit Court of Appeals in New Orleans, in response to a joint petition from Louisiana, Mississippi, South Carolina, Texas and Utah and several interested businesses, ordered a temporary pause of the ETS pending expedited judicial review. The Court stated, “Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby STAYED pending further action by this court.” The opinion can be found here.
The Court directed the government to respond to the motion for permanent injunction by Monday (which is today!) at 5:00 p.m., and the petitioners to file a reply by Tuesday (tomorrow) at 5:00 p.m.
So, what does this mean for employers?
First, employers who wish to implement mandatory vaccination or testing requirements outside of the ETS may still do so. Regardless of the outcome of the court challenges, there is nothing prohibiting employers from moving forward with a mandatory vaccination or testing policy. Just remember to make accommodations for medical conditions that contraindicate a vaccination, disabilities and sincerely held religious beliefs.
This is a dynamic and fast-moving situation with potential compliance deadlines just around the corner – December 6th and January 4th. Therefore, employers should, in the meantime, continue with compliance preparation so they are ready if the ETS goes forward.
Stay tuned! We are monitoring this and will keep you posted.
Information about the various states filing petitions relating to the ETS in the 5th Circuit may be found at the following links:
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