Vaccine mandate deadline looms for employers despite challenges

It took just one day before the first lawsuit was filed against the U.S. Occupational Safety and Health Administration’s emergency temporary standard mandating COVID-19 vaccinations and testing by employers.

There are now more than 30 lawsuits filed across the 12 federal circuit courts challenging the authority of OSHA over states and the legality of the ETS. On Nov. 12, the 5th U.S. Circuit Court of Appeals in New Orleans granted a motion to stay the ETS, temporarily halting its enforcement.

Since then, OSHA has suspended activities related to “the implementation and enforcement of the ETS pending future developments in the litigation,” and the collection of challenges against the ETS have been assigned by lottery to the 6th U.S. Circuit Court of Appeals in Cincinnati.

Despite the uncertainty hanging over the mandate, employers should still be prepared to implement the ETS, which imposes significant administrative burdens on companies, legal experts say.

The long-awaited mandate was finally introduced on Nov. 4. It requires that employers with 100 or more workers enforce COVID-19 vaccinations or testing of their workforces by Jan. 4, 2022. Employees will have to submit proof that they have been vaccinated or comply with weekly COVID-19 testing.

With the flood of legal action that followed its introduction, the mandate’s fate is unclear.

The 6th Circuit is considered conservative, which may make it more likely to rule against the mandate, said Kelley Barnett, vice president of corporate counsel-labor & employment at AmTrust Financial Services Inc. in Cleveland.

Several challengers to the ETS have asked the court to bypass the initial panel process and put the cases to the full court via an en banc review, Ms. Barnett said.

“Requests for an initial en banc review are rarely granted, but given the unprecedented nature of the ETS, and the fact that the outcome of these challenges will impact tens of millions of workers and potentially their right to make personal decisions about their health, it should not be a surprise if the court grants the request for an en banc review,” she said.

An en banc review could also fast-track the cases to the U.S. Supreme Court.

Regardless of the legal process, attorneys say employers should prepare to implement the mandate.

“Employers don’t want to be caught in a position in which they’re not ready to implement the ETS if all or even part of it survives these legal challenges,” Ms. Barnett said.

“The ETS is a huge administrative burden,” said Gary Pearce, chief risk architect at Aclaimant Inc., a risk management consultancy based in Chicago. “It depends on the industry, but some employers are going to get crushed by this thing.”

There is a fair chance that if the ETS survives, the deadlines will be extended, he said, but it will take weeks, if not longer, for employers to prepare to implement the ETS, and they should take some steps now.

“Employers need to plan on the dates not being pushed back,” Mr. Pearce said, noting that there are many avenues for either parts of or a revised ETS to prevail.

“The emergency temporary standards serve as the basis for permanent rules,” he said. “I don’t think OSHA is really looking past the next few months, but they’ll make a determination later whether to withdraw this, issue a new rule, try to make it permanent with modifications.”



Christopher Lewis

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