E-Alert: OSHA Suspends Implementation of
Vaccine Mandate: Now What?
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"The Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers' varying degrees of susceptibility to the supposedly 'grave danger' the Mandate purports to address" (Fifth Circuit Court of Appeals) |
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On November 16, the Occupational Safety and Health Administration (OSHA) announced that it was suspending implementation of the Emergency Temporary Standard (ETS) which would have required employers of 100 or more employees to implement a vaccine mandate or implement a testing program. The announcement was in response to the Order from the Fifth Circuit Court of Appeals that enjoined implementation of the ETS pending further litigation. The Fifth Circuit ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” In its announcement, OSHA stated that although it has suspended implementation and enforcement of the ETS, “it remains confident in its authority to protect workers in emergencies” and “enforcement of the ETS pending future developments in the litigation.”
The Fifth Circuit decision staying enforcement was issued on November 12, 2021. The Court stated in its opinion that the Plaintiffs were likely to succeed on the merits in their challenge to the vaccine mandate. Among the reasons cited, the Court noted that OSHA and the Biden administration previously announced that an ETS “was not necessary to protect working people from infectious disease, including COVID-19.” The Court stated that agencies must typically provide a “detailed explanation” for contradicting prior policy, especially when the prior policy has “engendered serious reliance interests.” The Court stated that “indeed, the Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). According to the Court, this showed that there was no true “emergency,” and shows that “the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.” Furthermore, the Court stated that OSHA will not be able to make findings of exposure, or at least the presence of COVID-19, in all covered workplaces.
According to the U.S. Judicial Panel on Multidistrict Litigation, 34 petitions were filed seeking review of the OSHA rule in 12 different circuit courts. In accordance with procedure, the cases were consolidated and a drawing was held by the Judicial Panel on Multidistrict Litigation which selected the Sixth Circuit Court of Appeals to hear the consolidated cases challenging the Mandate. The Sixth Circuit will have the authority to modify or lift the Fifth Circuit’s Order. It is expected that the U.S. Supreme Court is likely to have the final say on the legality of the ETS.
The 5th Circuit injunction does not impact the mandates applicable to federal contractors or employers subject to the Centers for Medicare and Medicaid Services guidance. With such exception, as of now, other employers of 100 or more employees no longer need to comply with the December 5, 2021 and January 4, 2022 deadlines for implementing the ETS vaccine mandate or a weekly testing program. Last week, the Society for Human Resource Management (SHRM) advised Congress that its research showed that (a) Nearly 60 percent of U.S. workers who are not fully vaccinated (59 percent) said they still are unlikely to get vaccinated (definitely/probably won't get vaccinated) even after the mandate; (b) Nearly two in five, or 38 percent, of organizations that meet the criteria for the new requirements cited retaining talent as the most challenging impact of the mandate and 89 percent believed some of their employees would quit their jobs due to the new requirements; and (c) 85% of employers were concerned about their ability to implement the COVID-19 Vaccine and Testing Emergency Temporary Standard (ETS) mandate. In addition to costs and burdens of implementing the mandate, many employers have had difficulty attracting and retaining talent. Also, employers have expressed concern about legal exposure for companies denying, as well as granting, accommodations for employees who declined to be vaccinated for various reasons, including due to a disability or a sincerely held religious belief. Accommodations which marginalize such workers by granting a “work from home” accommodation could adversely impact careers and lead to discrimination and/or retaliation claims by such workers when banning them from the workplace was not a “reasonable” accommodation to mitigate the risk to the employee or others in the workplace.
Of course, under the OSH Act’s General Duty Clause, every employer must maintain a safe workplace. Further, administrative and environmental controls to eliminate a hazard are always OSHA’s first line of obligation for the workplace. With that said, a recent GAO report found that OSHA inspectors had difficulty citing employers under the general duty standard because “it was difficult to apply a law—the general duty clause—to Covid-19-related hazards because it would likely only be cited if an employer was making no effort to protect workers from Covid-19.” Thus, despite the ETS stay, employers would be well advised to assess the hazards in their workplaces and to implement an appropriate COVID-19 plan with administrative and engineering controls to mitigate workplace exposures, even though vaccination and weekly testing cannot be mandated by the ETS.
Employers should consult labor and employment counsel knowledgeable with respect to the OSH Act as well as other workplace laws impacted by employer COVID-19 workplace policies. NELGPC attorneys are prepared to assist employers in assessing the workplaces, developing COVID-19 policies and procedures, and reviewing accommodation requests.
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Najjar Employment Law Group, P.C. | www.nelgpc.com |
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Boston Office
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Boston, MA 02108
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Disclaimer
The articles contained in this publication have been abridged from laws, court decisions, and administrative rulings and should not be construed or relied upon as legal advice. If you have questions concerning particular situations and specific legal issues, please contact your Najjar Employment Law Group, P.C. attorney. This publication can be considered advertising under applicable laws.
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