Advocacy News – November 16, 2021
In a 22-page ruling, the 5th U.S. Circuit Court of Appeals upheld its stay on President Biden’s vaccine mandate for companies with 100 or more employees. The order was issued Friday after the U.S. Department of Justice (DOJ) asked the appeals court to lift an order temporarily blocking the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS).
The order found the ETS “imposes a financial burden upon [private employers] by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road.”
The order criticized the ETS for not making an attempt to “account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the [ETS] purports to address.” The order went on to question whether OSHA has shown a “grave danger” and that the ETS is “necessary.” The order concluded that petitioners are entitled to a stay because (1) they are likely to succeed on the merits and are suffering irreparable harm, (2) a stay pending adequate judicial review of the underlying motion for permanent injunction will not harm OSHA, and (3) the public interest favors a stay. The full order, which specifies that OSHA shall “take no steps to implement or enforce the mandate until further court order,” can be found HERE.
In response to the latest ruling, the DOJ vowed to continue to fight, saying: “[This] decision is just the beginning of the process for review of this important OSHA standard. The department will continue to vigorously defend the standard and looks forward to obtaining a definitive resolution following consolidation of all of the pending cases for further review.”
What Does This Mean for Employers?
While the latest ruling is good news for employers who are concerned about the unintended consequences associated with the ETS, it remains unknown whether the rules ultimately will go into effect. Planning for implementation will likely take several weeks, the Michigan Chamber and employment and labor attorneys are suggesting employers monitor legal developments and continue preliminary compliance preparations.
Among other things, the OSHA ETS requires:
- All unvaccinated workers must begin wearing masks by Dec. 6 and provide a negative COVID-19 test on a weekly basis beginning Jan. 4.
- Employers must pay employees for the time it takes to get vaccinated and recover from any side effects that prevent them from working.
- Companies are not required to pay for or provide the tests unless they are otherwise required to by state or local laws or in labor union contracts.
What Resources Are Available to Me?
- The full OSHA ETS can be found here (see pages 150-154).
- A full overview of the ETS, including compliance deadlines, fact sheets and sample policies, can be found here.
- A variety of compliance resources can be found in the Chamber’s new Vaccine Mandate Toolkit.
- Companies interested in voicing their concerns in Washington DC are encouraged to get involved with the MI Chamber-led coalition, Listen to MI Business.
Michigan Chamber Requests State Assistance
Should the mandate go forward, the Michigan Chamber and other business community leaders are requesting support from Gov. Whitmer and her administration in procuring and paying for the COVID-19 testing supplies for the duration of the ETS.
Federal dollars have already been appropriated by the state legislature for testing and vaccination. Whether through a grant program or other method, this financial assistance will help employers and their employees shoulder the incredible burden of complying with this ETS.
Please contact Wendy Block with any questions at firstname.lastname@example.org.