On November 12, 2021, the United States Court of Appeals for the Fifth Circuit extended its temporary stay of the OSHA standard requiring vaccination or weekly testing of workers at private employers with 100 or more employees. The emergency temporary standard (ETS), released on November 4, 2021, was immediately met with a flurry of legal challenges. Days later, on November 6, 2021, the Fifth Circuit granted an emergency stay of the ETS. The court has now extended that stay pending full judicial review.
What This Means for Employers
OSHA is currently barred from taking any steps to implement or enforce the ETS. However, employers should be wary of halting all compliance efforts. While the fate of the ETS hangs in the balance, its deadlines are coming up in a matter of weeks. The ETS requires compliance with most of its provisions by December 5, 2021. If employers choose to allow weekly testing as an alternative to vaccination, that testing must begin by January 4, 2022.
Given those tight deadlines, many employers have likely already begun planning for compliance. Whether to continue those efforts while the ETS faces judicial review depends on the risk tolerance of your organization. Already over-burdened HR departments may welcome the respite. However, if the ETS survives legal scrutiny, employers may have a difficult time implementing the many requirements of the ETS in a quick timeframe. The ETS requires, at a minimum, written COVID policies, face coverings for unvaccinated individuals, rosters of employee vaccination statuses, and collecting proof of vaccination, as we previously reported. The considerations that go into each of these issues will take time and may require organization-wide coordination. For example, it may be nearly impossible for an organization with thousands of employees to complete a vaccination roster in a few weeks. Waiting to see how the ETS fares in the courts carries its own risks.
Importantly, the Fifth Circuit’s decision does not affect the federal vaccination mandate for healthcare workers or federal contractors. Large private employers that are also federal contractors still must comply with that mandate. The Fifth Circuit’s decision similarly does not impact COVID requirements at the state or local level.
What Happens Next
Given that this issue is pending in several different federal circuits, a lottery will determine which circuit will hear the case. That decision will be made quickly and will have a significant impact on whether the ETS survives legal scrutiny. If the ETS lands in a more conservative circuit, for example, the Fifth Circuit’s decision may be echoed in a permanent order.
Likely Fate of the ETS
It is difficult to predict whether the ETS will be validated or permanently struck down. OSHA must prove that COVID presents a grave danger in the workplace and that the measures in the ETS are necessary to protect workers from that danger. The Fifth Circuit did not believe that these standards would be met. The court pointed to declining COVID infections and questioned the scope of the rule as applying to only large employers, not specifically to workers in at-risk environments, regardless of size. Other circuits may have a different view, however. OSHA will likely point to the death toll of COVID, spread of COVID among the unvaccinated, breakthrough infections due to the variants, and the need for a coordinated national approach. These are unprecedented times, so the outcome remains uncertain.
What Employers Should Do Now
While the fate of the ETS hangs in the balance, employers should at least consider the realistic lead time needed to comply with the key provisions and prepare to do so quickly if the ETS is reinstated. For example, employers can:
- Find out who is vaccinated and who is not, and request proof of vaccination.
- Survey employee opinions, which may greatly inform your compliance strategy.
- Decide whether to allow weekly testing as an alternative to vaccination and if so, consider the logistics of testing, such as who will pay for it, how results will be collected and stored, and how to ensure negative results are returned on time.
- Come up with a plan for evaluating requests for accommodations due to a disability or religious belief.
- Determine how to handle requests for time off to get vaccinated.
- Subscribe to legal blogs and news outlets to get the most up-to-date information.
We will continue to monitor these developments. Employers with questions about the ETS or any other employment laws should contact one of Conn Kavanaugh’s experienced employment lawyers.
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