November 29, 2021

Volume XI, Number 333

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Update on OSHA's Vaccination Requirement for Employers With 100+ Employees

As stated in the Employment Litigation and Counseling Advisory, Q&A – A Closer Look at OSHA’s Vaccination Requirement for Employers With 100+ Employees, on November 6, the United States Court of Appeals for the Fifth Circuit stayed enforcement of the OSHA Rule nationwide. The Fifth Circuit then held an expedited briefing and, on November 12, the court upheld its earlier order staying enforcement, and further implemented an injunction ordering that OSHA “take no steps to implement or enforce” the Rule “until further court order.” Since then, the myriad of lawsuits challenging the OSHA Rule — including the Fifth Circuit case — have been consolidated in Multi-District Litigation and the Sixth Circuit Court of Appeals was chosen on November 16 to consider the merits of the cases and decide whether to dissolve or uphold the Fifth Circuit’s injunction.

On November 17, in response to the Fifth Circuit’s order, OSHA announced that, “while OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” Read the OSHA-posted the announcement.

Since OSHA has suspended implementation and enforcement of the OSHA Rule nationwide, employers are relieved from having to meet the deadlines previously announced by OSHA; specifically, the deadline of early December for their employees to receive an initial vaccination shot in order to comply with the January 4, 2022 deadline for employees to be fully vaccinated or else face mandatory testing. But even though employers no longer face those deadlines, they may still want to take preparatory steps for compliance with the rule in the event it is upheld.

Note that the stay of the OSHA Rule does not affect the other emergency rules that OSHA recently released — the CMS Rule and the Federal Contractor Rule.

Co-authored by Janet Widmaier, Counsel.

©2021 Katten Muchin Rosenman LLPNational Law Review, Volume XI, Number 323
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About this Author

Janella T. Gholian Employment Lawyer Katten Law Firm
Special Counsel

Janella Gholian focuses her litigation practice largely on labor and employment matters. She defends employers against actions of wrongful termination, discrimination, breach of contract and other issues. She also works with landlords defending them against ADA actions and helping them to comply with their regulations.

Good HR practices are the best defense against employee problems

Most of Janella's clients are located in California, so she is well-versed in the state's employment laws. She advises companies on the state's HR regulations regarding hiring, termination,...

310.788.4445
Julie L. Gottshall, Employment Law Lawyer, Katten Muchin Law Firm
Partner

Julie L. Gottshall serves as the Chicago head of the Employment Law and Litigation practice. She practices nationally in the area of employment law, providing litigation representation and counseling on behalf of management.

Julie also represents both companies and individuals in matters relating to unfair competition and the enforcement of restrictive covenants, such as confidentiality and non-compete agreements. In addition to her litigation practice, Julie negotiates and drafts employment and separation agreements and restrictive covenant agreements, conducts...

312-902-5645
Michelle A. Gyves Employment Litigation and Counseling Attorney Katten Muchin Rosenman New York, NY
Partner

Michelle Gyves helps domestic and multinational employers navigate a wide range of employment issues with legal components to them. They include hiring and termination, compensation and benefits, restrictive covenants, workplace investigations, diversity and inclusion, and global mobility.

Keeping employers current on legal obligations

Michelle has conducted numerous multistate and multicountry audits of employment laws and practices, ensuring clients' compliance in a wide range of areas. Her experience covers data privacy, disability and leave laws, employer health and...

212.940.6585
Stacey Knight, partner, Katten Muchin Rosenman Law Firm
Partner

Stacey McKee Knight serves as national co-chair of the Litigation and Dispute Resolution practice, and is a member of Katten's Board of Directors and the firm's Executive Committee. She concentrates her litigation practice in the areas of labor and employment law. Stacey has extensive class action experience and focuses primarily on wage and hour class actions and collective actions, including Fair Labor Standards Act, meal and rest period, donning and doffing, vacation and regular rate of pay claims at the state and federal levels. Stacey represents management in a variety of...

310-788-4406
Tenley Mochizuki, Katten Muchin Law Firm, Litigation Lawyer
Associate

Tenley Mochizuki concentrates her practice in litigation and dispute resolution matters.

While attending law school, Tenley participated in the Advocacy for the Elderly Clinic and worked on the Virginia Environmental Law Journal. Before joining the firm, she worked in a medical office, a primate cognition laboratory and various nonprofit organizations.

212-940-8568
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