United States: Red Light, Green Light, Red Light: Considerations For Employers While Legal Challenges To The OSHA Emergency Temporary Standard Go Through The Courts

On November 4, 2021, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) released the Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to mandate vaccines or require weekly testing and face coverings.  On November 6, 2021, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit (which covers Texas, Louisiana, and Mississippi) temporarily "stayed" (meaning that it suspended enforcement of) the ETS.  On November 12, 2021, the Fifth Circuit ordered a continuation of its stay of the ETS, directing OSHA to take "no steps to implement or enforce the Mandate until further Court Order."  Shortly thereafter, OSHA pronounced that while it "remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation." 

As expected, many individuals, organizations, and states filed legal challenges to the ETS, which triggered an obscure process known as the "Multi-District Litigation lottery."  Where the same law is subject to many legal challenges in several different circuit courts, a "lottery" is held to determine which appellate court will oversee the consolidated appeals.  On November 17, 2021, the U.S. Court of Appeals for the Sixth Circuit (which covers Kentucky, Michigan, Ohio, and Tennessee) "won" the lottery, meaning that it will decide the merits of the myriad legal challenges to the ETS.  The immediate question is whether the Sixth Circuit will keep in place the Fifth Circuit's stay on the ETS while the appeal plays out, which appears to be the most likely outcome. 

All of this legal and procedural shuffling has left many employers wondering—what should we do now?  For starters, while enforcement and implementation of the ETS is stayed, employers do not have a legal obligation to comply with its terms.  However, notwithstanding these legal challenges—which largely focus on whether OSHA exceeded its constitutional rulemaking authority—many employers had already implemented, or were in the process of implementing, mandates consistent with the ETS.  The stay of the ETS does not prohibit a private employer from issuing its own mandate.  Moreover, many believe that even if the Sixth Circuit ultimately strikes down the initial ETS as an unconstitutional overreach, individual states will follow with their own mandates.  We have already seen states implement such mandates in certain sectors, such as California's first-in-the-nation vaccination mandate issued by the California Department of Public Health which requires healthcare workers to get vaccinated unless they qualify for an exemption.  Finally, the challenges to the OSHA ETS and the current stay on enforcement do not impact other federal mandates, including Executive Order 14042 mandating vaccination for federal contractors and subcontractors, and the emergency regulation issued by the Centers for Medicare & Medicaid Services (CMS). 

Employers who anticipate implementing a "vaccine or testing" mandate for its workforce—whether to be in compliance with the current or future version of the ETS, a state requirement, or as a matter of company policy—have many steps they can take while the legal challenges play out. 

• Prepare Policies: The adage "luck favors the prepared" comes to mind.  While the fate of the current version of the ETS remains uncertain, it makes sense for employers of all sizes (and particularly those with 100+ employees) to prepare for what many believe is the inevitable vaccine or testing mandate.  Those employers that have already implemented such policies can appreciate the logistical challenges—from engaging outside counsel to assist with preparing policies, obtaining consensus among key company stakeholders, establishing processes, and ultimately rolling out the policies and requiring compliance from employees as a condition of employment.  The absence of a strict federally imposed deadline provides the luxury of time, and employers would be wise to take advantage of this opportunity. 

• Testing: One of the primary requirements of the ETS is that employers require unvaccinated workers to undergo weekly testing.  The ETS does not require the employer to pay for the costs of testing if the employee chooses not to get vaccinated.  However, many states (e.g., California and Illinois) have broader labor laws that generally require employers to pay for the costs of "reasonable business expenses."  If an employer desires to implement weekly testing while the ETS is pending, they should consult with an employment law expert to determine whether the states in which they operate require that the employer pay for the cost.

• Surveying Vaccination Status of Workforce: Employers should also consider ascertaining the current vaccination status of its workforce by requesting that employees disclose their current vaccination status and, for those who are vaccinated, prove proof of vaccination.