5th Circuit Court Temporarily Halts OSHA ETS – Vaccination Mandate

Immediately following the issuance of federal Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on the COVID-19 vaccination mandate applicable to most employers with 100+ employees, at least a dozen states filed lawsuits. Some states have filed jointly, while others filed individually.

On Saturday, the 5th Circuit Court of Appeals issued an emergency stay of further implementation or enforcement of the ETS. While it is uncertain at this time whether the stay applies nationwide, it definitely applies in Louisiana, Mississippi, and Texas.

In addition, other states, as well as individuals, businesses and trade groups have filed separate petitions. And the list of legal challenges continues to grow.

Since multiple circuit Court of Appeals have filed petitions, it was decided Monday that the matter will be consolidated, and a lottery will be held by the Judicial Panel on Multidistrict Litigation. We should know by November 16 which circuit will hear the consolidated cases.

The U.S. Occupational Safety and Health Administration (OSHA) published its long-awaited Emergency Temporary Standard (ETS) requiring vaccination for all employees of employers with 100 or more employees. The rule is set to take effect November 5, 2021. OSHA’s FAQs provide useful information.


Other Updates and Clarifications:


OSHA’s ETS for employers with 100+ employees does not apply to:

      • Workplaces covered by the Safer Federal Workforce Task Force Covid-19 Safety: Guidance for Federal Contractors and Subcontractors;
      • Workplaces that provide healthcare services that are subject to the requirements of the OSHA Healthcare ETS; and
      • Public employers in states without OSHA-approved state plans.

The ETS deadline for employers to implement a written policy and procedures for the vaccination mandate and for the masking requirement is December 6 since the previously communicated deadline of December 5 falls on a Sunday.

If an employer is considering paying for testing for mandate purposes, consideration should be given as to whether the payment would qualify as a group health plan subject to ERISA, HIPAA and other laws and requirements. Additionally, the insurer (including reinsurer) and/or TPA should be consulted in advance.

See also  Compliance ✔- ARPA COBRA Subsidy (Premium Assistance)

The Administration moved the vaccination mandate deadline applicable to federal (sub)contractors from December 8 to January 4 to align with the federal OSHA ETS.

An employer who has workplaces that are subject to the ETS and workplaces that are subject to the Federal Contractor mandate must comply with the mandate that applies at each workplace.

The Centers for Medicare and Medicaid Services (CMS) issued an interim final rule requiring many Medicare and Medicaid-certified providers and suppliers to implement a policy to ensure their staff receives at least one-dose vaccine by December 5 and are fully vaccinated (or receive their final dose) by January 4, 2022.

The Department of Labor’s (DOL) Wage and Hour Division will provide guidance on the cost of employee-paid testing as it relates to the Fair Labor Standards Act (FLSA).

Employer Next Steps:

It’s unclear where this lawsuit will ultimately lead. OSHA, which enforces the new mandate, says there is legal precedent for its rule which preempts state laws. As such, the lawsuit may be dismissed. Or, if a judge disagrees with OSHA’s position, a court battle may continue for an indeterminate length.

    1. Despite this, applicable employers should still plan on complying with most of the vaccination and testing mandate provisions by the Dec. 6, 2021, deadline. Even amid legal challenges, noncompliance with the mandate may result in hefty penalties.

    2. Employers should keep the link to the OSHA ETS FAQs bookmarked for frequent consultation. Although the rule is burdensome to employers, the agency’s FAQs provide helpful, practical answers to the most pressing compliance questions.

    3. See our related bulletins below for more information on determining employee numbers, testing for non-vaccinated employees and employer vaccine policy requirements.

    4. Read more about the new rule and employer obligations on the OSHA website, and refer back to our prior blog post.
Determining EE Numbers Testing Non Vaccinated EEs Vaccine Policy Requirements

This blog and its contents are not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.