What's Next? Stay on OSHA ETS Regarding Vaccination Policies on 100+ Employees

As we have discussed with many of our clients, the U.S. Court of Appeals for the Fifth Circuit quickly ruled on Friday, November 12 and issued an order staying enforcement and implementation of the OSHA Emergency Temporary Standard requiring employers with 100 or more employees to institute vaccination or testing policies (OSHA ETS). Unlike the November 5 stay, this stay effectively stops OSHA from both enforcing or implementing the OSHA ETS without further court action.

What will happen next?  

Various groups in 11 out of the 12 U.S. Circuit Courts of Appeal have filed similar petitions to the one heard by the 5th Circuit. Likely this week, all petitions for review will be consolidated before one of the eleven circuit courts of appeal via a lottery. The circuit court chosen will ultimately determine whether to continue, alter or lift the 5th Circuit’s order staying the OSHA ETS. It is very likely that ultimately the U.S. Supreme Court will decide whether the OSHA ETS was a proper exercise of OSHA’s authority to issue emergency regulations because of “grave danger” to employees. 

Must employers still comply with the December 6 and January 4 implementation dates? 

Right now, it is very likely that the case will not be determined before the December 6 and January 4 deadlines. This means that employers can hold off on implementing the requirements of the OSHA ETS. 

Can employers legally still continue with vaccine mandates? 

Yes. Private employers can choose to implement their own mandatory vaccination policies, however, these would be subject to state law requirements, like Iowa’s new requirements regarding religious and medical exemptions. If you choose to continue with a mandatory vaccination policy, please be sure you are in compliance with both state and federal law. 

What if I already started on compliance and want to pause? 

You can pause, but please continue to maintain any information already gathered as medical information and treat it with required confidentiality. 

What if you are a federal contractor subject to Executive Order 14042 or an employer subject to the Centers for Medicare and Medicaid Services interim final rule? 

These regulations for federal contractors and entities subject to CMS requiring vaccinate mandates (certain Medicare and Medicaid-certified healthcare providers and suppliers) are not impacted by the 5th Circuit’s order and these employers should continue to work toward compliance. Please note that the CMS Rule is also under legal challenges and we are monitoring. 

Please contact an employment law attorney with any questions and we will continue to update you. 

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Simmons Perrine Moyer Bergman PLC is a full service law firm with locations in Cedar Rapids and Coralville, Iowa. For more information, visit spmblaw.com.  

Disclaimer: This information is intended for general information purposes only and is not intended, nor should it be construed or relied on, as legal advice. Please consult your attorney if specific legal information is desired.