The vaccine mandate rules are changing. On November 18, 2021, the federal government announced that it will not be implementing or enforcing the COVID-19 vaccine mandate. Read below for details on what you need to know.

This is a change from the announcement that the Department of Labor would be mandating vaccines for workplaces with 100 or more employees. Employers have been moving quickly to create and implement vaccination and testing policies. Now, the Department is backing off of implementation and enforcement of the mandate, and employers are left wondering whether the mandate will disappear entirely, and what, if anything, they should be doing now.

OSHA Announcement

On November 18, 2021, the US Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it would be suspending any implementation and/or enforcement of the Emergency Temporary Standard (ETS) regarding COVID-19 vaccinations released by the Biden Administration on November 4th of this year. This announcement follows a host of legal challenges brought against the ETS, most specifically a ruling from the Fifth Circuit Court of Appeals issuing a stay against the ETS, citing “grave statutory and constitutional issues.”

At this point, it is uncertain when and how implementation of the ETS might occur, but many employers who had already designed ETS-compliant policies plan to continue with their implementation despite the stay.

Initial ETS

As released, the ETS stated that any employer with more than 99 employees must require their employees to receive a COVID-19 vaccination by January 4, 2022. Employees who refused or were unable to receive the vaccination would need to undergo weekly COVID-19 testing and wear masks in the workplace. Additionally, employers were required to give PTO to employees for the time spent receiving vaccinations and for recovery time from potential vaccine side-effects. While OSHA stated that fines for non-compliance would be assessed on a case-by-case basis, the maximum penalty for serious violations of the ETS was stated as nearly $14,000.00 per occurrence. The legal parameters of an OSHA ETS hold that any agency-imposed mandate may only be in effect for six months without additional congressional approval.

Legal Challenges

Almost immediately, the ETS faced a host of legal challenges. The bases for these challenges range from constitutional concerns surrounding religious freedom to questions of whether the federal government could override individual states’ determinations regarding vaccine requirements. The pivotal argument behind the challenge resulting in the stay from the Fifth Circuit and the subsequent OSHA announcement is the question of whether the Department of Labor correctly exercised its congressionally granted authority in issuing the ETS. An ETS is only to be issued when it is determined that employees are exposed to a “grave danger” that necessitates immediate intervention.

In this circumstance, opponents state that the wide-reaching mandate is not narrowly tailored for individual workplace conditions in the way that previous ETS orders have been. Workplaces and employment situations in the United States are varied and diverse, and they allege that the ETS’ application of the same “rules” to a warehousing or trucking operation as to a cubicle-filled office building is arbitrary and not designed to address an immediate “grave danger.”

Further, they argue that if the “grave danger” is the spread of the COVID-19 virus, a vaccine mandate does nothing to address such danger, as vaccinated individuals have been shown to be capable of transmitting the virus. There are those that feel that the administration knew there was a substantial possibility of a legal stay on enforcement, but hoped the creation of the mandate itself would spur enough action on the part of employers to improve vaccination rates.

Potential Outcomes

While OSHA has suspended implementation and enforcement for the time-being, it is uncertain how long this suspension will last, and, if the suspension is lifted, whether the ETS will contain any changes. The issue is currently headed for review by the Sixth Circuit Court in Ohio—a heavily Republican judiciary. While a decision by the Sixth Circuit is being made on an expedited basis, it still may take weeks to be determined. It is important to note that the stay issued by the Fifth Circuit is not a decision “on the merits” of the ETS, but simply a procedural tool to prevent implementation and enforcement while the underlying legal questions of the ETS are being debated. Therefore, the Fifth Circuit’s decision does not necessarily undermine the mandate itself. The Sixth Circuit’s decision, however, will concern whether the contents of the ETS and its vaccine mandate are legally permissible. Regardless of the Sixth Circuit’s ruling, most legal experts agree that the question will likely end up in front of the United States Supreme Court.

Best Practices

Given the fast timeline presented by the ETS—essentially two months from the first announcement to total workplace compliance—many employers have already begun creating policies and practices in order to handle the logistics involved in getting their employees vaccinated, handling paperwork to document vaccination, and implementing weekly testing regimens. Although OSHA’s recent announcement means that none of these policies must go into effect, should the stay be lifted and OSHA once again pursue implementation and enforcement, the deadline for compliance won’t necessarily be “bumped-back,” and employers should avoid a last-minute scramble to handle the practicalities of vaccination and testing.

For the last month, Taylor Johnson has been working with our clients to develop strategies to meet the standards imposed by the ETS while maintaining vital business operations and protecting employee rights. Please contact us about your individual needs regarding COVID-19 protocols.

By Elle Slattery. Contact Elle here.