As expected, the legal challenges flooded in against OSHA’s Federal Vaccine mandate for employers with 100 or more workers after the Department of Labor published the Emergency Temporary Standard (ETS) on November 5. The ETS will require proof of vaccination or weekly testing for those who are not fully vaccinated by Jan. 4, 2022, with mask requirements for the unvaccinated scheduled to take effect December 6 until a Louisiana court issued an emergency stay, blocking implementation of the ETS.
Due to the number of challenges filed in multiple courts, all cases are being consolidated and heard in the Sixth Circuit Court of Appeals based in Cincinnati. The court is expected to likely extend the emergency stay, blocking the implementation of OSHA’s ETS while it considers arguments in the coming weeks. Legal sources do indicate, regardless of the Sixth Circuit’s decision, the losing side will appeal to the U.S. Supreme Court. Under an expedited process, the high court could issue a decision in late December or early January, which many expect would not rule on whether OSHA has the authority to issue the rule, but whether it violated procedures in doing so. Labor lawyers are advising companies with 100 or more employees to at least proceed with initial steps to build a system for compliance. A lawsuit filed also challenges the 100 employee threshold, meaning, efforts are underway to lower that count.
More uncertainty is not what businesses need these days, but uncertainty over the vaccine mandate will continue for at least several more weeks.