The week of November 15th, OSHA announced it was suspending implementation and enforcement of its new vaccine or test emergency temporary standards (ETS). They gave no indication of when the suspension would be lifted or when enforcement would begin but only acknowledged that there had been multiple cases filed in the courts challenging their statutory and constitutional authority for the new COVID-19 standards.
We now know that the Sixth Circuit Federal Court of Appeals has been selected to decide the fate of the mandate. We will have to wait for further instructions from the Sixth Circuit as to the timeline for their review and final decision on the new rules. Observers agree that this is an issue that will probably reach the US Supreme Court. The Sixth Circuit Court of Appeals has jurisdiction over federal appeals arising from the states of Kentucky, Michigan, Ohio, and Tennessee
Currently, employers with more than one hundred employees are facing a December 6th deadline for developing their compliance policies for the vaccine mandate or weekly testing. OSHA was supposed to begin enforcement of the rules to ensure compliance on January 4th. We now have to wait for the Sixth Circuit’s directions before we see any attempt to enforce the ETS by OSHA.
Based upon the current situation, we feel the best course of action now is to hold back on any finalization of a compliance policy by your company. We have no idea if all of the ETS will be struck down or only portions of it. Plus, we will not know if there is complete support of the ETS until a final decision is issued by the court. Therefore, we think the best course of action would be to outline your future actions for completing a compliance policy but hold off on taking any action to implement that policy.
Of course, any employer may develop their own a policy that complies with the ETS and implement it without any directive from OSHA. Vaccine mandates issued by private companies are only banned in Arizona, Montana, and Texas. We have already seen a number of large companies enact vaccine mandates and/or regular testing as a current policy.
Stay tuned for news on any further developments.