The Biden administration’s federal COVID vaccine mandate is in effect once again. While the new rule had been temporarily suspended since November 12, the US Court of Appeals for the Sixth Circuit recently lifted the stay.
The Occupational Safety and Health Administration (OSHA) has since resumed implementation and enforcement of its Emergency Temporary Standard (ETS), extending the compliance deadline to account for the earlier court injunction.
Find out more about this significant development and what it means for your organization.
What’s the Federal Vaccine Mandate?
On September 9, in a televised address to the nation, the President outlined several sweeping actions from his administration to better control the pandemic. They included new executive orders and federal regulations to mandate COVID vaccination for large private employers, most federal agencies and government contractors, and all healthcare providers who receive Medicare and Medicaid reimbursement, ultimately affecting over about two-thirds of the workforce.
Released on November 4, OSHA’s ETS requires private employers with 100 or more employees to implement and enforce a policy mandating COVID vaccination or weekly testing and masking for workers who remain unvaccinated.
For more details on the requirements of the federal vaccine mandate, check out OSHA Releases Biden Vaccine Mandate for Private Employers.
What’s Happened with the Federal Vaccine Mandate?
Originally, the vaccinate-or-test rule was set to go into effect on November 5—when the ETS was published in the Federal Register. That would have meant, starting December 5, unvaccinated workers would have been required to wear masks, and starting January 4, 2022, they would have been required to provide employers with proof of a negative COVID test weekly.
However, almost immediately, on November 6, the US Court of Appeals for the Fifth Circuit in New Orleans temporarily blocked the ETS. Soon after, on November 12, the court reaffirmed its decision, granting a motion to stay. In response, OSHA temporarily suspended implementation and enforcement of the ETS “pending future developments in the litigation.”
With legal challenges pending in several states, cases were consolidated and randomly assigned to the US Court of Appeals for the Sixth Circuit in Cincinnati on November 16, removing the Fifth Circuit\’s jurisdiction over the matter. Then, on December 3, the Sixth Circuit denied OSHA\’s motions to expedite the briefing schedule and to transfer the case back to the Fifth Circuit.
The latest legal development reverses the trend of decisions against the ETS. On December 17, the Sixth Circuit dissolved the stay, essentially allowing OSHA to resume implementation and enforcement. OSHA responded to the recent ruling with the following statement:
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.
This, of course, does not mean the end of legal action. Multiple plaintiffs in the consolidated case have already appealed the latest Sixth Circuit decision to the Supreme Court. Justice Brett Kavanaugh, who is assigned to appeals from the Sixth Circuit, has the option to decide himself or to refer the matter to the full Court. Either way, a decision is expected before the extended compliance deadline of January 10.
Still, these rulings are only meant to dictate whether or not to uphold the status quo while the consolidated case plays out in court. A final decision by the Sixth Circuit is not expected anytime soon. “In the meantime,” advises attorney Emily Litzinger of Fisher Phillips, “it is important for employers to continue to prepare for whatever may come out of the litigation.\” But in the midst of ruling reversals and rising Omicron cases, employers are left feeling “totally confused.”
In related news, on December 8, the US Senate narrowly voted to overturn the federal vaccine mandate—with two centrist Democrats joining Republicans. The Senate vote is largely a symbolic gesture as the Democrat-controlled House will likely not consider the bill—and even if it did, Biden would certainly veto the legislation aimed at undoing his COVID initiative.
How Can Employers Prepare for the Federal Vaccine Mandate?
The first step toward compliance is for employers to develop and implement a mandatory vaccination or weekly testing policy for their employees by January 10. OSHA\’s website provides templates that HR teams may use for their own organizations.
Employers also need to consider how they will:
collect proof of vaccination
maintain records for weekly negative tests
track paid time off for employees to receive and recover from vaccination