November 8, 2021
By now, you’ve heard that on Saturday, November 6, the Court of Appeals for the Fifth Circuit issued a temporary stay order, blocking OSHA from implementing its contentious vaccine mandate until the “grave statutory and constitutional issues” related to the law could be addressed. The Court gave the government until 5:00 pm today, Monday, to respond to a request to make this a permanent injunction; the many challengers to the mandate have until 5:00 pm tomorrow, Tuesday, to respond to the government’s response.
We will probably see additional rulings in the coming days from other federal circuits— some will side with the Fifth Circuit’s decision, others will rule that the ETS is on solid legal footing. Ultimately, there will have to be a unifying judicial order with the final say on the matter. But in the meantime, where does this leave employers?
What Should Employers Do
While OSHA cannot enforce the ETS until the court(s) say otherwise, you can be sure OSHA will move rapidly if and when the judges remove the injunction. In the meantime, we strongly encourage employers to familiarize themselves with the law and prepare accordingly. If the injunction is lifted, OSHA is likely not going to be in the mood to coddle non-compliant employers who claim they did not make any preparations to implement the mandate while waiting for the situation to play out in court.
Should the injunction be lifted, the first deadline for employers is to have a vaccination policy with associated procedural documents ready by December 5, 2021. These materials cannot be thrown together overnight, so the wise employer would start putting together its project outline during this time in limbo. Continue to encourage vaccination of your employees, and stay tuned for this bumpy ride.
The content of this Alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice.