In response to an order from the Fifth Circuit Court of Appeals, the Occupational Health and Safety Administration (OSHA) announced it had suspended efforts related to the workplace vaccine mandates and mask mandates for employers with 100 or more employees. The agency stated, “”OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
Here’s a timeline of the regulatory and litigation events that have taken place thus far:
September 9, 2021 – President Biden announced his intention for a mandate on employers with 100 or more employees as part of his Path Out of the Pandemic: COVID-19 Action Plan.
November 4, 2021 – OSHA released its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) to be published in the Federal Register the next day. The ETS contained deadlines for employee vaccination by January 4, 2021 and for unvaccinated employees to wear masks after December 5, 2021.
November 5, 2021 – Texas, Louisiana, Mississippi, South Carolina, and Utah filed suit in the Fifth Circuit to challenge the large employer ETS.
November 6, 2021 – The three-judge panel of the Fifth Circuit issued a temporary stay (suspension) of the ETS and requested briefing from OSHA.
November 5-15, 2021 – Multiple additional challenges were filed by other states. Within 10 days, 34 lawsuits were filed, with one or more filed in each of the 12 U.S. circuits.
November 12, 2021 – As described by law firm Ward and Smith, P.A., “The Fifth Circuit issued an order in the nature of a preliminary injunction reaffirming its initial temporary stay and indicating that it would consider vacating and rendering unenforceable the ETS after additional judicial review.”
November 16, 2021 – When suits about the same matter are filed in multiple circuits, there is a lottery-based rule that enables the challenges to be heard by a single court. Using this lottery drawings system, the case was taken from the Fifth Circuit Court of Appeals and assigned instead to the Sixth Circuit, based in Cincinnati, Ohio.
What happens next?
The Departments of Justice and Labor have announced their intention to fight in court for the implementation of the OSHA ETS. The federal government has expressed confidence in its legal authority to issue the ETS.
According to legal sources, DOJ may first request the Sixth Circuit to lift the stay that the Fifth Circuit imposed. If that occurred, OSHA could lift its suspension, enabling the mandate to move forward in implementation simultaneously to the litigation taking place. On the other hand, if the Sixth Circuit declines to lift the stay, the suspension continues until litigation is complete.
When will employers know the outcome?
The wheels of justice can turn very slowly. There is obvious urgency to this case and the Sixth Circuit may endeavor to hear it quickly. But even so, the decision is likely to be appealed by whichever side loses the case. We are probably weeks, if not months, away from any resolution to this issue.
Will the vaccine mandate end up in the U.S. Supreme Court?
Some legal experts predict this case will eventually be heard by the U.S. Supreme Court. So far, the Supreme Court has declined to hear cases challenging a number of state-level vaccine mandates. The Supreme Court has some precedent in a 1905 case, Jacobsen v. Massachusetts, which centered around whether a state could enact compulsory vaccination (against smallpox). In that case, the Court found that a state could compel vaccination, noting
“The liberty secured by the Constitution of the United States does not import an absolute right in each person to be at all times, and in all circumstances, wholly freed from restraint, nor is it an element in such liberty that one person, or a minority of persons residing in any community and enjoying the benefits of its local government, should have power to dominate the majority when supported in their action by the authority of the State.”
In the case of the COVID-19 vaccine mandate, OSHA used a rarely-invoked and temporary emergency standard. Consequently, there are many differences between the current mandate and the state-level mandate from the Jacobsen case.
Is there any impact on federal vaccine mandates for government contractors and healthcare workers?
No. Both of these vaccine mandates are also the subject of litigation; however, no federal court has issued a stay to halt the implementation of these mandates yet. Federal contractors and Medicare- and Medicaid-certified providers and suppliers should continue to move forward with compliance. Federal contractors should note the government did extend the deadline to become fully vaccinated to January 4, 2022.
Will employers continue preparing for compliance with the OSHA mandate?
The White House suggested employers continue to take actions to comply with the OSHA ETS even though the mandate is not currently being implemented or enforced. On November 17th, White House Press Secretary, Jen Psaki, told reporters, ““Let me be very clear: Our message to businesses right now is to move forward with measures that will make their workplaces safer and protect them — their workforces from COVID-19. That was our message after the first stay issued by the Fifth Circuit. That remains our message and nothing has changed.” She also noted, “The Department of Justice is vigorously defending the emergency temporary standard in court, and we are confident in OSHA’s authority.”
Should employers wait for the outcome of current legislation before making any moves toward compliance? According to legal experts interviewed by Human Resource Executive, many employers are requiring employees to vaccinate anyway. Should OSHA prevail in court, the agency would quickly lift its suspension and announce new deadlines. Many employers won’t want to be in the position of announcing a new policy, then walking it back, and later re-implementing it. Consult your legal counsel for advice on how to proceed and for guidance about the possible interplay of state legislation and federal mandates.