Updated Nov. 9 at 8:31 a.m.: Twenty-six states have sued the federal government regarding the Occupational Safety and Health Administration’s vaccination and testing requirements for employees with 100 more employees, citing governmental overreach. The suits were filed in the 5th, 6th, 7th, 11th and D.C. Circuits. Federal law requires the cases to be consolidated and heard by a single federal appeals court. That court is chosen by lottery, which will take place around Nov. 16. The 5th Circuit last week issued a stay on the OSHA rule, which is scheduled to go into effect Jan. 4. Legal experts say companies should continue preparations toward the rule; however, the legal battle could continue to the Supreme Court if injunctions from lower courts fail.
Updated Nov. 8 at 6:51a.m.: The U.S. 5th Circuit Court of Appeals on Saturday issued a stay on President Biden’s Emergency Temporary Standard issued Thursday by the Occupational Safety and Health Administration. The ETS would require employees with 100 or more employees to implement policies requiring employees to be vaccinated or provide weekly proof of a negative Covid-19 test.
The order was issued in one of several lawsuits filed across the U.S. challenging the legality of the ETS. The 5th Circuit wrote the lawsuit in question brought forward “cause to believe that there are grave statutory and constitutional issues” surrounding the ETS. The stay will stop implementation of the ETS at least temporarily; the court ordered the parties to submit this week further arguments regarding the validity of the ETS.
U.S. companies with 100 or more employees must make sure
their workforce is fully vaccinated against Covid-19 or see that they test
negative for the virus at least once per week, according to rules issued by the
Occupational Safety and Health Administration on Thursday.
OSHA’s emergency temporary standard follows through on a
forth in a set of executive orders by U.S. President Joe Biden in
September. The rules affect more than 80 million workers in the U.S., and OSHA
estimates it will result in about 23 million people becoming vaccinated who have
“Vaccination is the single best pathway out of this
pandemic,” Biden said in a statement. “While I would have much
preferred that requirements not become necessary, too many people remain
unvaccinated for us to get out of this pandemic for good.”
The requirement, naturally, will have implications for
corporate travel. While the emergency standard does not apply to employees
working from home or who do not otherwise report to a workplace where other
employees are present, they would have to provide negative test documentation
if reporting to an office, even for a simple task such as attending a meeting
or printing documents, according to Keith Wilkes, labor and employment partner
and shareholder at national law firm Hall Estill.
“Covered employers have a long laundry list of legal
requirements to accomplish and prepare for in the next four weeks, [including] implementing
a mandatory mask policy for employees who are not fully vaccinated by Dec. 5,
2021, and begin requiring unvaccinated employees to wear face masks in the
workplace,” according to Wilkes.
Employers are not required to cover employee testing costs,
per the standard.
The U.S. Department of Health and Human Services also issued
a rule on Thursday requiring U.S. healthcare workers to be vaccinated.
Companies that contract with the federal government—which include the major
are facing an employee vaccination requirement with the deadline of Dec. 8.