The Biden administration called upon OSHA to create a vaccination mandate by use of an OSHA Emergency Temporary Standard. The issued OSHA standard requires businesses with 100 or more employees to comply with strict vaccination and testing guidelines for all employees who work together within indoor spaces.
OSHA ETS Blocked
A collection of Attorneys General sued to block the OSHA ETS. The U.S. Court of Appeals for the U.S. Fifth Circuit issued an emergency stay of the ETS, pending briefing and expedited judicial review. The Department of Justice then requested that the halt be lifted, contending that the administration has the legal authority to require COVID-19 vaccines or testing for larger companies and that the states that are challenging the mandate have not shown that their claims outweigh the harm of stopping of rule.
The Fifth Circuit reaffirmed its stay in a 22-page opinion, determining that the petitioners had demonstrated the required elements for a stay pending judicial review. The Court further ordered OSHA to “take no steps to implement or enforce the [ETS] until further court order.”
White House Response
The White House urged businesses to continue implementing the guidance for COVID-19 vaccines and testing, stating that they are secure in their authority. The U.S. Fifth Circuit court is located in Louisiana and may not represent the final outcome of further appeal.
For covered employers to comply with the requirements of the OSHA ETS will be a major undertaking. The outcome is uncertain. Should OSHA prevail, each employer needs to determine the risk of being unprepared for renewal. (see also: Preparing for Pending OSHA Vaccination Mandate Emergency Temporary Standards)
To assess the risk of standing still while the case winds through the courts, here are additional details on the ETS requirements: COVID-19 Vaccination and Testing ETS