On Tuesday, November 16, the Occupational Safety and Health Administration (OSHA) announced that it is suspending all implementation and enforcement efforts related to the emergency temporary standard (ETS) on mandatory COVID-19 vaccination and testing in the workplace.
OSHA’s announcement comes on the heels of a November 12 order from the Fifth Circuit Court of Appeals directing OSHA to take “no steps to implement or enforce the Mandate until further Court Order.” Acknowledging the Fifth Circuit’s order, OSHA’s website now contains the following message:
On November 12, 2021, 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, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). 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.
Also on November 16, the Sixth Circuit was selected by lottery as the venue where all legal challenges to the ETS will be consolidated. As of this writing, litigation challenging the standard has been filed in all federal circuits except the D.C. Circuit. Historically, OSHA has not fared well when its standards have been attacked in the courts, with five of six standards being struck down.
So, how should employers proceed? It’s difficult to predict how quickly OSHA will resume implementation and enforcement if the standard survives. Employers with 100 or more employees who are not federal contractors or otherwise subject to the Center for Medicare and Medicaid Services’ vaccination standard may wish to continue their preparations so that they are ready to comply in the event that the ETS is upheld. OSHA’s webpage on the ETS contains a number of resources for employers to use for meeting the compliance requirements, including specimen vaccination policies and two fact sheets on workers’ rights workers’ rights and penalties for knowingly providing false information, all of which the ETS (pre-suspension, that is) requires that employers communicate to their employees.
And a word about public school districts and other public sector employers in Illinois, to which the Illinois Occupational Safety and Health Act applies. Last week, the Illinois Department of Labor posted the following notice regarding compliance guidance for public employers in Illinois:
Illinois OSHA is aware of the recently published federal COVID-19 Vaccination and Testing; Emergency Temporary Standard 1910,-15-17-18-26-28. We are reviewing the standard and are working to develop guidance for public, non-federal employers before the standard takes effect, which will be no more than 30 days after November 5, 2021. Further information and guidance will be forthcoming.
Presumably Illinois OSHA will suspend application of the standards to public sector entities pending the outcome of the federal litigation, but the state agency has not made any official announcement since federal OSHA announced its own suspension of implementation efforts.
Like most things COVID-related, the vaccination ETS debate is expected to get messier in the coming days.