On November 17, 2021, OSHA suspended the execution and enforcement of its Emergency Temporary Standard (ETS) mandating employers with 100 or more employees to implement mandatory COVID-19 vaccination and testing policies. This suspension came after the Fifth Circuit Court of Appeals granted a motion to stay the mandate until further court order is issued.
As of this time, 11 out of the 12 U.S. Circuit Courts of Appeal have filed suit against the mandate stating it is unconstitutional and beyond OSHA’s purview of authority to implement such a requirement. On November 16, 2021, the Sixth Circuit Court of Appeals was selected to hear the case and make the decision as to the constitutionality of the mandate. This decision will likely be decided in the coming weeks. Following the Sixth Circuit’s decision it is anticipated that the party in which the decision does not favor will appeal, bringing the case before the U.S. Supreme Court to make the ultimate decision.
Per the ETS, covered employers have until December 6, 2021 to draft and distribute a vaccination policy and employees have until January 4, 2022 to comply with the employer’s policy. At this time, it is unclear whether the December and January effective dates will stand. Until further guidance is received, covered employers should continue to develop their policies in case the mandate is upheld and they need to comply quickly.
If you have any questions, please contact us at icomply@ibpllc.com.
