November 18, 2021 8:41 am
On November 4th, we let you know that the Occupational Safety and Health Administration (OSHA) filed a proposed rule requiring employers of 100 or more to ensure that their employees were either vaccinated against COVID-19 or tested weekly for the virus.
The very next day, petitions were filed by individuals, corporations, and States requesting that the rule be struck down. On November 12, 2021, the Fifth Circuit Court of Appeals issued an order staying the implementation of OSHA’s emergency temporary standard (ETS) pending judicial review to determine if a permanent injunction is appropriate. Below is a summary of the Appeals Court’s ruling:
The written decision begins by quoting OSHA’s own statement from June 2020 that an ETS was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19,” and points out that the Mandate does not attempt to explain why the federal government was previously outspoken against vaccine mandates, but now considers them to be an emergency necessity. President Biden is quoted from December 2020 as saying, “No, I don’t think vaccines should be mandatory.” The Court noted that OSHA was not created to enact “sweeping pronouncements on matters of public health” and the Mandate “likely exceeds the federal government’s authority under the Commerce Clause.”
Even if the Mandate were found to be constitutional, the Court recognized several significant flaws in OSHA’s requirements. The Court described the Mandate as a “one-size-fits-all sledgehammer that makes hardly any attempt to account for difference in workplaces and workers.” The ETS makes no distinction in the risks facing “a security guard on a lonely night shift” and a “meatpacker working shoulder to shoulder in a cramped warehouse.” Describing the requirements as both “staggeringly overbroad” and “underinclusive,” the Court points out that COVID-19 poses relatively little risk to the majority of Americans, but that under this rule, “the most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer.” “The underinclusive nature of the Mandate implies that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.”
So, what do we do now? Because the ETS cannot be enforced at this time, the December and January deadlines for employees’ COVID vaccinations are no longer in effect. (Other vaccine requirements, such as those for health care workers and federal contractors still remain in place.)
There are a variety of federal petitions on this topic still to be reviewed, and California’s own Cal/OSHA regulation is set to be published in the near future. Smart, reasonable COVID safety measures such as knowing your staff’s vaccination status, monitoring for symptoms, and maintaining good workplace cleaning and hygiene will continue to be best-practices regardless of how the government tries to work through these complex issues.
As always, we’re here to help you navigate the ever-changing landscape of COVID-19 precautions. Stay tuned for more information, and contact one of our Consultants with any questions you have.