Employers will have to wait to see what the future holds for the Biden administration’s rule that would require some 84 million employees across the country to either be vaccinated against COVID-19 or submit to weekly testing.
The U.S. Occupational Safety and Health Administration (OSHA) rule, which was published in the Federal Register on November 5, mandates employers with at least 100 employees to require vaccination or weekly testing of their employees. The rule allows for a few exemptions, including people who work exclusively outside or from their homes and those with medical or religious reasons for refusing vaccination.
OSHA issued the rule as an emergency temporary standard (ETS), which is allowed under the Occupational Safety and Health Act of 1970 (OSH Act) if warranted by an emergency. Issuing an ETS is a much faster way to implement a rule than the standard rulemaking process, which includes a long public comment period and can take months or years to put in place.
Various foes of the ETS, including a group of state attorneys general, promised legal action to stop the rule. On November 6, another set of foes, a group of businesses, was successful in getting a three-judge panel from the 5th U.S. Circuit Court of Appeals to issue a temporary stay blocking enforcement of the rule pending further action from the court.
The panel said it issued the stay because of “grave statutory and constitutional issues” with the mandate imposed by the rule.
The 5th Circuit panel called on the administration to respond by 5 p.m. November 8. Then, the group seeking a permanent injunction against enforcement of the rule will have until 5 p.m. on November 9 to file any reply.
Jane H. Heidingsfelder, an attorney with Jones Walker LLP in New Orleans, Louisiana, says the ETS has been challenged in multiple federal courts, and OSHA has notified the Judicial Panel on Multidistrict Litigation of the challenges. That panel will hold a lottery on November 16 to assign the cases to a single appellate court where a challenge has been filed.
“While the 5th Circuit has temporarily stayed enforcement of the ETS, the appellate court that hears the consolidated case could eventually lift the stay, so it is important for employers to begin preparing to comply with the ETS,” Heidingsfelder says.
Michael P. Maslanka, an assistant professor at the University of North Texas College of Law in Dallas and managing editor of Texas Employment Law Letter, says the issue boils down to whether the court will decide that the COVID-19 virus fits in the language of the OSH Act, which allows for an ETS when “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and “that such emergency standard is necessary to protect employees from such danger.”
Judges who espouse a “textualist” view look at the language of the law and read it in a limiting fashion, which would lead them to decide the ETS should not be enforced, Maslanka says. Another school of thought says the law should be given the broadest reading possible.
Advice to employers
“My advice to employers is to begin the process of determining the vaccination status of their employees and to start planning the policies and procedures they will use to comply with the ETS if it is reinstated,” Heidingsfelder says. “Employers do not want to find themselves in a situation where they do not have enough time or resources to comply with the ETS in the event the stay is lifted.”
Maslanka also says employers should be preparing to comply with the ETS and points out that even if the standard is struck down, employers will still be free to make vaccination a condition of employment if they want. Also, a permanent injunction against the ETS doesn’t interfere with state legislatures’ or Congress’ right to mandate the shots.
“Thus, companies with covered federal contracts should proceed with plans to be in compliance with the guidance issued by the Safer Federal Workforce Task Force by January 4, 2022,” Adams says.
Amy Jordan Wilkes, an attorney with Burr & Forman LLP in Birmingham, Alabama, also says employers need to prepare to comply with the deadlines in the ETS: December 5 for employers to develop a written policy and provide paid time off for employees to get vaccinated and recover from possible effects and January 4, 2022, for employers to either ensure all employees are fully vaccinated or are tested at least weekly.
Commenting before the 5th Circuit panel’s ruling, Wilkes said employers should be evaluating how many unvaccinated employees will be affected by the ETS. “This assessment will help the employer do a cost/benefit analysis on whether to mandate vaccination or go the weekly testing route.”
Legal action attempting to stop the ETS wasn’t a surprise, Wilkes says. “I expect most of the arguments will center around whether OSHA has exceeded its authority in issuing the ETS, specifically whether OSHA has shown that the risk of workplace exposure to COVID-19 is a ‘grave danger’ and that the ETS is necessary to protect employees from that grave danger.”
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.