Will OSHA’s Mandatory Vaccination/Weekly Testing Rule for Large Employers Survive Court Challenges?
On November 9, 2021 by Schnader in Labor and EmploymentLisa M. Brauner published a client alert, “Will OSHA’s Mandatory Vaccination/Weekly Testing Rule for Large Employers Survive Court Challenges?”
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced its long-awaited Emergency Temporary Standard (ETS) mandating all private-sector U.S. employers (both for-profit and nonprofit) with at least 100 employees that are covered by OSHA, to develop, implement and enforce a mandatory Covid-19 vaccination policy, or adopt a policy requiring employees to either get vaccinated or undergo weekly Covid-19 testing and wear a face covering at work. Employees would be required to be fully vaccinated by January 4, 2022, and after January 4, 2022 those employees who are unvaccinated would need to provide proof of a negative Covid-19 test to their employers on at least a weekly basis. OSHA published its ETS in the Federal Register on November 5, the date that the interim final rule took effect.
At least 26 states and also a coalition of states and private businesses have brought suit against OSHA, challenging the legality of the ETS. On November 6, a three-judge panel of the U.S. Circuit Court of Appeals for the Fifth Circuit issued a temporary injunction against OSHA, blocking implementation of the ETS.