OSHA's Mandatory Vaccination Rule Stayed by Federal Court

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On November 5, 2021, the U.S. Occupational Safety and Health Administration published its anticipated emergency temporary standard on COVID-19 Vaccination and Testing (the “ETS”). Citing the “grave danger” posed by the virus to unvaccinated employees in the workplace, the headline-grabbing core of the ETS is the requirement that covered employers must implement and enforce a policy that mandates that employees be fully vaccinated against COVID-19 by January 4, 2022 or to submit to weekly COVID-19 testing and wear a mask. 

The ETS stated that it was to take effect immediately, i.e., when it was issued on November 5, 2021.  However, numerous legal challenges to the ETS were filed in federal courts across the country on the same day it was issued.  The challengers in the legal cases asserted, among other things, that the ETS is not valid because OSHA did not have the authority to issue the ETS and that it is unconstitutional.

In one of those challenges, the U.S. Court of Appeals for the Fifth Circuit issued a nationwide “stay” on November 6, which is a court order preventing the ETS from going into effect until the challenge is resolved in court.  The Fifth Circuit found there was "cause to believe there are grave statutory and constitutional issues" with the vaccine mandate rule.

If that stay is lifted, or if the ETS is ultimately upheld, then the ETS will be in effect and can be enforced by OSHA.  While those legal challenges work their way through the courts over the comings weeks or months, it is essential for covered employers to keep a close watch on those proceedings. 

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