OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) was published on November 5, 2021. It would require workplaces with 100 or more employees to establish, implement, and enforce a policy mandating employees to be fully vaccinated or undergo weekly testing for COVID-19 and wear a face covering at the workplace. Several industry stakeholders are concerned with burdens that the ETS would place on both employers and employees. As a result, on November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay, ordering that OSHA "take no steps to implement or enforce" the ETS "until further court order." At this time, OSHA has suspended activities related to the implementation and enforcement of the ETS.
How Should Employers Proceed?
OSHA's ETS has been suspended. Employers should put a pause on implementing any policies related to mandatory COVID vaccinations. Implementing such a policy before the legal process has been completed would place unnecessary legal liability on the employer. However, employers should remain vigilant and be prepared to make changes to their written policy once judicial review has been completed.
