Federal Courts Stay Implementation of OSHA COVID-19 Rules

OSHA COVID-19 Workplace Vaccine Standard

Recent litigation on the Biden administration’s workplace vaccination rules indicates that the series of mandates are in trouble, as new federal court decisions halting the measures pile up. Among the rules is OSHA’s emergency temporary standard (ETS) issued in early November, which requires employers with 100 or more employees to ensure each of their workers is fully vaccinated or tests for COVID-19 on at least a weekly basis. The OSHA rule would also require that these employers provide paid-time for employees to get vaccinated, and ensure all unvaccinated workers wear a face mask in the workplace. The rule covers approximately 84 million employees.

Immediate Legal Backlash

Petitioners have filed more than 30 separate lawsuits challenging the legality of the Emergency Temporary Standard (ETS) and moving to temporarily and, ultimately, permanently block its implementation. The petitioners across these nearly three dozen challenges include more than half the states in the US, numerous private employers, religious groups, the Republican National Committee, and some labor unions.

In November, a major national industry coalition submitted a request to OSHA to extend the deadline for written comments about the potential replacement of the ETS with a Permanent COVID-19 Vaccination, Testing, and Face Coverings Standard. On November 30^th the DOL issued an announcement granting an extension of the comment deadline by 45 days out to January 19, 2022.

Currently, the ETS remains stayed, and a decision is not likely to be made that would change the stay before the rule was original scheduled to go into effect. In addition, the U.S. Supreme Court may have the ultimate say in this matter. To be safe, companies may consider proceeding with the soft work required to implement the ETS (e.g., preparing the written policy, perhaps doing some vaccination verification because that information is useful for other reasons, too, such as face covering requirements), but avoid making capital expenditures until the status of the ETS is formally resolved.

Healthcare Industry and Federal Contractor Mandates

On December 7, 2021, the US District Court for the Southern District of Georgia stayed the federal contractor vaccine mandate issued by the White House via Executive Order 14042 on September 9, 2021. The Court Order applies nationwide and enjoins the federal government “from enforcing the vaccine mandate for federal contractors and subcontractors in all covered contracts in any state or territory of the United States of America.”

NASF will continue to work with its industry coalitions and reach out to OSHA officials regarding updates and developments. If you have any questions or would like additional information on the ETS, please contact Jeff Hannapel or Christian Richter with NASF at jhannapel@thepolicygroup.com or crichter@thepolicygroup.com.

This update is courtesy of the National Association for Surface Finishing (NASF). For more information or to become a member, visit nasf.org.