Hello Again: OSHA’s COVID 19 Vaccination Mandate for Private Employers is Back, and NYC has Its Own

Murtha Cullina
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Several updates related to COVID-19 vaccination mandates occurred this week at the federal and local levels.  On December 17, the 6th U.S. Circuit Court of Appeals lifted the stay on the federal government’s mandate that employees of covered employers receive a COVID-19 vaccination or undergo weekly testing.  The Occupational Safety and Health Administration (“OSHA”) will begin enforcing the previously stayed Emergency Temporary Standard (“ETS”) on January 10, 2022.

On November 4, OSHA issued the ETS requiring private employers with 100 or more employees to enforce vaccination mandates for its employees or, alternatively, require weekly testing. Just one day after, on November 6, the 5th U.S. Circuit Court of Appeals temporarily suspended the ETS.  In dozens of lawsuits, states, businesses, religious groups, and private employers challenged the ETS as an overreach of government authority.

On December 17, in a 2-1 ruling from the panel, the 6th Circuit concluded that the challengers who sought to stay the rule were not likely to succeed on the merits of their challenge. The panel further concluded that the transmission of COVID-19 in the workplace was a “grave danger” falling under OSHA’s authority to address.  In reaching this conclusion, the Court stated, “[f]undamentally, the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs. . . . The harm to the government and the public interest outweighs any irreparable injury to the individual petitioners who may be subject to a vaccination policy.”

While OSHA will begin enforcing the ETS on January 10, 2022, the Labor Department announced that OSHA will not issue citations for noncompliance until February 9, 2022 “so long as an employer is exercising reasonable, good faith efforts to come into compliance” with the ETS.

At the local level, New York City Mayor Bill de Blasio recently announced a vaccine mandate for private employers.  The order requires employees to submit proof of at least one dose of a vaccine or request a reasonable accommodation by December 27.  To comply, all employers must require all workers who enter the workplace be vaccinated.  New York City employers have only one week to comply with the updated rules.  The order broadly defines a covered entity as any private employer with more than one worker or any self-employed individual who works in a workplace or interacts with other people in the course of doing business.

Covered employers should review and update their COVID-19 related policies in preparation to comply with both the ETS and applicable local laws.  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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