May 21, 2022

Volume XII, Number 141

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OSHA Issues Mandatory Vaccination and Testing Standard, But One Federal Court of Appeals Has Already Issued a Stay

The Occupational Safety and Health Administration (“OSHA”) published on November 5, 2021, its emergency temporary standard (“ETS”) requiring most private employers with 100 or more employees to establish, implement, and enforce a written mandatory vaccination or test policy. The ETS requires covered employers to mandate employees be either fully vaccinated or provide proof of regular COVID-19 testing and wear face coverings while at work. Employers will be required to provide up to four hours paid time to allow for employees to receive their primary vaccine dose and allow for reasonable time and paid sick leave to recover from any side effects resulting from each dose. 

The ETS includes two important deadlines for employers. By December 5, 2021, employers must comply with all requirements of the ETS, excluding the weekly testing requirement. This means that by December 5, 2021, all unvaccinated employees must begin wearing face coverings while at work, unless certain conditions apply. After January 4, 2022, unvaccinated employees must provide weekly proof of negative COVID-19 test results. 

Following OSHA’s issuance of the ETS, several states and private employers have filed petitions for review in the Fifth, Sixth, Eighth, and Eleventh U.S. Circuit Courts of Appeals. On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued a temporary stay to enforcement of the ETS, as part of an expedited review. The Government is required to respond to the Petitioners’ motion for permanent injunction by today, November 8, 2021, by 5 p.m. The Fifth Circuit temporarily suspended enforcement because the petitions gave cause “to believe there are grave statutory and constitutional issues” associated with the ETS. The Fifth Circuit’s jurisdiction includes Texas, Louisiana, and Mississippi.

While the litigation over the ETS is ongoing, employees would be well-advised to continue creating the policies and procedures necessary to comply with the ETS. While no one knows at this point whether the ETS will survive the legal challenges, compliance deadlines are coming quickly. Waiting for clarity from the courts may leave little time to prepare policies and practices if the ETS is upheld. 

© Steptoe & Johnson PLLC. All Rights Reserved.National Law Review, Volume XI, Number 312
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About this Author

Rodney L. Bean, Employment Litigation Attorney, Steptoe & Johnson PLLC Law Firm
Member

For more than 20 years, Rodney Bean has provided practical, no-nonsense advice to help leading employers develop and apply labor and human resources strategies that are both compliant and prudent.  He regularly counsels employers on most aspects of federal and state employment law, and has broad experience in wage and hour compliance and affirmative action planning. 

Representative Experience

  • Received no probable cause determination from Fairfax County (Virginia) Human Rights Commission in national origin discrimination claim...

304-598-8140
Ashley Faulkner Labor Employment Associate Attorney West Virginia Morgantown Steptoe & Johnson PLLC
Associate

Ashley Faulkner was drawn to practice law to make a positive impact on her hometown and state. She is a labor and employment lawyer working with clients in a variety of industries to creatively solve problems, often before litigation occurs. Ashley appreciates the human side of her practice and enjoys uncovering the “why” behind the matters she works on. She is often described as a “go-getter,” taking advantage of every opportunity to gain practical and leadership experience. Ashley strives to be known as more than a good lawyer and is often seen as a zealous advocate...

304-598-8164
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