OSHA’s vax-or-test mandate for larger employers hits major turbulence

It has been a turbulent time for the Occupational Safety and Health Administration’s (OSHA) new COVID-19 vaccine and testing requirements for employers with at least 100 employees. Next up: The U.S. 6th Circuit Court of Appeals (which covers Tennessee employers) will decide the fate of a consolidated package of lawsuits challenging the federal agency’s authority to implement and enforce the rule.

How we got here

On November 4, 2021, OSHA announced its long-awaited emergency temporary standard (ETS) requiring larger employers to:

• Implement a written COVID-19 vaccination policy, gather information on employees’ vaccination status, and perform other tasks by December 5; and
• Require weekly testing and masking for all employees who fail to become fully vaccinated by January 4, 2022.

Shortly thereafter, petitions were filed throughout the federal circuit courts of appeal challenging the ETS.

On November 6, a three-judge panel in the 5th Circuit (which covers Louisiana, Mississippi, and Texas) issued the first order temporarily delaying the ETS’s implementation “pending further action by [the] court” and citing “grave and constitutional issues.” After an expedited briefing period, on November 12, the same court issued a 22-page order barring OSHA from taking further steps to implement or enforce the rule.

Because of the 5th Circuit’s ruling, on November 15, OSHA “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

6th Circuit’s ping-pong ball picked