By Mark Macchi, Catherine Reuben, David Wilson, Kathleen Berney, Alicia Ward December 13, 2021
What’s New
OSHA’s 100+ Employee Vaccine-or-Test Mandate: On December 3, the Sixth Circuit Federal Court of Appeals denied the Biden administration’s motion to fast-track arguments over the Fifth Circuit’s November 6, 2021, issuance of a nationwide injunction staying the implementation of OSHA’s Emergency Temporary Standard requiring private employers with 100 or more employees to mandate that those employees either be vaccinated or subjected to regular testing. The Sixth Circuit’s denial ended any chance that the case would be decided before December 6, 2021, which was the first major deadline for the OSHA standard.
Federal Contractor Vaccine Mandate: On Tuesday, December 7, a federal court in Georgia issued a nationwide injunction blocking the implementation of the Biden administration’s vaccine mandate for federal contractors.
Mandate for Healthcare Workers: On November 30, a federal court in Louisiana issued a nationwide injunction staying the enforcement of the Centers for Medicare and Medicaid Services vaccine mandate, which was applicable to workers at Medicare- or Medicaid-funded healthcare facilities.
What It Means for Employers
While the injunctions remain in effect, employers will not be required to comply with the federal vaccine mandate that may have otherwise applied to them. As has been the case prior to the initial announcement of the federal vaccine mandates, employers may continue to voluntarily implement mandatory vaccination policies for their employees, so long as such policies are consistent with applicable EEOC standards.
With respect to the OSHA standard, employers who would have otherwise been subject to the standard, if not for the nationwide injunction, will not have to meet the December 6 deadline for implementing a compliant vaccine-or-test policy, at least until the Sixth Circuit renders a final decision on the matter. Briefing on the issue is scheduled to extend through at least December 10, after which it is unclear how long before the court will decide on whether the injunction will remain in effect. Until the Sixth Circuit renders its decision, employers will not be required to comply with the OSHA standard.
Though the mandates are not currently legally binding, employers may still choose to comply with those parts of the mandates that they consider beneficial and achievable (for example, face coverings, social distancing, informing the employer if an employee has COVID-19, etc.), with the goal of promoting safety, and better enabling the employer to comply quickly if the injunction on the mandate applicable to their business is ultimately lifted.
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