OSHA Halts Planned Enforcement of its Vaccine Mandate | Poyner Spruill LLP

The U.S. Department of Labor’s Occupational Safety and Health Authority (OSHA) announced that it is suspending enforcement of the vaccine or testing the Emergency Temporary Standard (ETS), which it announced on November 4, 2021 and which will come into effect on January 4, 2022 Should employers with 100 or more employees step in to ensure that their employees are fully vaccinated by January 4, 2022 or after, require weekly COVID-19 tests for all employees who remain unvaccinated. That ruling immediately follows a U.S. Fifth District Court Appeal stay last week that temporarily halted the implementation of the ETS. That court ordered OSHA not to take any steps to implement or enforce the mandate until another court order was issued. Earlier, North Carolina Labor Commissioner Josh Dobson said North Carolina will not enforce the OSHA ETS, at least in the near future (NC OSHA is not adopting the ETS immediately for Covid-19 – Poyner Spruill LLP).

Following its announcement in early November, the OSHA ETS was immediately attacked and is the subject of several federal lawsuits to prevent its implementation. These lawsuits have now been consolidated in the United States Court of Appeals for the Sixth District, which will determine the legal fate of the ETS. The Sixth District was selected in a random draw to hear the consolidated cases and its decision will be applied nationwide. Of course, the ultimate fate of the ETS can be decided at the Supreme Court.

So what should an employer do? Many employers had already started preparations for the ETS and created vaccination or test work rules for employees that meet the ETS requirements. There is nothing stopping employers from continuing these plans to enforce their own vaccination or testing rules in the workplace when they meet the need to make reasonable accommodation for disabilities or religious desires. In addition, OSHA and NC Department of Labor administrative decisions, as well as legal proceedings, could evolve and change in the short term. On the other hand, employers who are looking for relief from their workplace mandates have one, at least temporarily. Please note that this latest OSHA decision does not affect the separate CMS mandate that created a testing requirement for certain organizations receiving Medicare and Medicaid government dollars. We will keep you informed about the frequent changes in this area.

https://www.jdsupra.com/legalnews/osha-halts-planned-enforcement-of-its-5955401/