Court stays ETS employer vaccine mandate

UPDATE: Nov. 8, 2021: In a tweet Saturday, U.S. Department of Justice spokesperson Anthony Coley confirmed the agency plans to defend the vaccine mandate.

The OSHA emergency temporary standard, which is critical to keeping America’s workplaces safe while we fight this pandemic, was stated by Coley. “The Justice Department will vigorously defend the rule in court. “

Dive Brief:

  • The 5th U.S. Circuit Court of Appeals temporarily halted Saturday’s Occupational Safety and Health Administration’s temporary emergency standard, which would have required employers to establish a mandate for employee vaccines.
  • “Because the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate, the Mandate is hereby stayed pending further action by this court,” the circuit court ordered.
  • With multiple challenges filed in several federal courts, Bloomberg Law reported that the cases typically would be consolidated into one and heard by one court chosen by lottery. According to the outlet, circuit courts can decide on injunction requests before the lottery court is selected. However, the court that is selected will be able lift the stay.

Dive Insight:

The ETS faced challenges even before its publication in the Federal Register. Twenty-four attorneys general signed a letter Sept. 16 promising legal action against the federal government should the mandate come to pass. According to the letter, the mandate could lead to a worsening of the workforce shortage as workers may choose not comply with the orders.

Construction associations have said that vaccine mandates in construction, which has one of the highest vaccine hesitancy rates of any industry, will only make the challenge of convincing workers to get the shot harder.

“We all want to see more people vaccinated and we are all doing our part to make that happen,” said Stephen E. Sandherr, CEO of the Associated General Contractors of America, in a statement last week. This rule will cause many workers to move jobs to smaller companies while larger contractors have to comply with a complicated new rule and struggle to find workers who can meet client demand. “

This injunction request included filings from the governments of Texas, Louisiana, Mississippi, South Carolina and Utah, all signees on the September letter.

Meanwhile, Texas Gov. Greg Abbott issued an executive order limiting employer vaccine mandates earlier in October, while Alaska Governor Mike Dunleavy issued an order Nov. 2 stating “no state agency shall participate in, or use state funds or personnel, to further a federal vaccine mandate for employers. “

Despite this stoppage and continued legal challenge, attorneys advise employers to work toward compliance anyway.

Even though the 5th Circuit has temporarily enjoined the OSHA “vaccine or test” mandate, employers should still prepare as if this will take effect as planned until SCOTUS says otherwise.

— Jon Hyman (@jonhyman) November 6, 2021

While the lawsuits are in part “political bluster,” Jon Hyman, partner at Wickens Herzer Panza and author of the Ohio Employer Law Blog, wrote to HR Dive, the real legal question may be whether OSHA “exceeded its authority under the ETS statute by not remedying a ‘grave danger. ‘”

“The focus, and where these challenges have the best chance of succeeding, is the 100-employees coverage demarcation. If COVID-19 still presents a ‘grave danger’ … why does that grave danger not also exist in workplaces with fewer than 100 employees? Hyman said that this question is OSHA’s greatest challenge in winning these lawsuits. The ETS performed its duties despite the fact that employers may mandate lawsuits. “

HR Dive Reporter Ryan Golden contributed to this story.

Kathryn Moody
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