OSHA's Vaccinate-or-Test Standard Is Delayed. What About Health Care Employers?

Parker Poe Adams & Bernstein LLP

Parker Poe Adams & Bernstein LLP

On November 12, the United States Court of Appeals for the Fifth Circuit issued an order staying the enforcement and implementation of the Occupational Safety and Health Administration’s vaccinate-or-test emergency temporary standard (ETS). Though the Fifth Circuit only includes Texas, Louisiana, and Mississippi, and other federal appellate courts have not yet ruled on the matter, OSHA released the following statement in response:

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.

As it currently stands, OSHA’s vaccinate-or-test ETS stands powerless, likely until the Supreme Court of the United States consolidates all of the lawsuits and hears the arguments at once. Though this process will take a few months to sort out, employers should still have discussions about implementation and applicability to ensure that they are ready when the final ruling comes out. The stay of OSHA’s ETS has no impact on the new Centers for Medicare and Medicaid Services (CMS) interim final rule for health care workers (discussed below) or executive order 14042 regarding mandatory vaccinations for federal contractors, so employers who fall under those rules must still comply with vaccination requirements.

What About the CMS Rule for Health Care Employers?

The CMS rule, though not implicated in the Fifth Circuit’s order, is now also facing a legal challenge by 10 states (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming) in the United States District Court for the Eastern District of Missouri. This lawsuit, filed on November 10, has not yet been ruled on, which means the CMS rule remains in effect and employers should continue planning for compliance with the CMS rule’s vaccination requirements.

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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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