Federal OSHA Withdraws COVID-19 Vaccination and Testing Emergency Temporary Standard

Our Blog has been monitoring the ETS that OSHA issued in November 2021 that mandated employers of 100 or more employees to require their employees to obtain COVID-19 vaccinations or undergo regular COVID-19 testing instead.  We have kept you informed as this ETS made its way through the courts.  First, implementation of the ETS was stayed by the Fifth Circuit Court of Appeals (see blog on 11/18/2021), then the stay was lifted by the Sixth Circuit Court of Appeals (see blog on 12/20/2021), and finally, argument was held before the U.S. Supreme Court, which ordered that the stay be put back in place after a majority of the Court found that OSHA had exceeded its authority in issuing the ETS (see blog on 12/23/2021 and blog on 1/13/2022). (Please note the Court let stand the Biden Administration’s vaccine mandate for certain healthcare workers.)

The U.S. Supreme Court Stays Enforcement of OSHA’s Nationwide Vaccine Mandate Because It Exceeds OSHA’s Authority

As Lizbeth West and James Kachmar wrote in previous blogs, here and here, the 6th Circuit Court of Appeals vacated the stay of OSHA’s vaccine-or-test mandate that applies to employers with more than 100 employees. Challengers of the mandate sought immediate review by the U.S. Supreme Court. The U.S. Supreme Court held oral arguments in the matter on an expedited basis on January 7, 2022, and just published an opinion today lambasting OSHA’s vaccine mandate and staying its enforcement.

US Supreme Court Will Hear OSHA Vaccine or Test Mandate Challenge on Expedited Basis

Earlier this week, Beth West wrote a blog update about the 6th Circuit Court of Appeals vacating the stay of OSHA’s vaccine or test mandate that applies to employers with more than 100 employees (Click here to read). Ms. West noted that the challengers to the mandate would seek immediate review by the U.S. Supreme Court. The Appellants in those cases filed their appeals of the 6th Circuit’s ruling and filed applications to again stay the OSHA vaccine or test mandate.

The Spread of Employee Lawsuits Related to COVID-19 May Be Widening, But Treatments and Cures May Exist

A blog we published here on May 28, 2020, correctly noted that California’s workers-compensation laws may immunize employers from most civil lawsuits alleging that employees became infected with the coronavirus on the job.  That blog also correctly emphasized that other types of lawsuits may spread from lax pandemic protocols.  This week the California Court of Appeal issued a unanimous three-judge decision outlining a potential path for workers and their families to get around workers-compensation immunity and maintain a possible new strain of civil actions.

OSHA’s COVID-19 Vaccine or Test Mandate Is BACK in Play… For Now

On Friday, December 17, 2021, the federal Sixth Circuit Court of Appeals granted an emergency motion to dissolve the stay of the federal OSHA COVID-19 vaccine or test mandate for large employers.

Background.

On November 5, 2021, OSHA issued an Emergency Temporary Standard (ETS or the standard) to protect the health of employees by mitigating the spread of this historically unprecedented virus in the workplace. The ETS requires that employees who work for an employer with 100+ employees, as well as certain government employees, to either obtain a COVID-19 vaccine, or undergo regular weekly tests. The next day, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS pending judicial review, and it renewed that decision in an opinion issued on November 12. Multiple petitions challenging the ETS—filed in Circuit Courts across the nation—were consolidated into the Sixth Circuit to be decided together.

California Department of Public Health Issues a New Statewide Indoor Mask Mandate

Due to the increase in COVID-19 infection numbers and the rising number of hospitalizations in recent weeks, the California Department of Public Health has issued a mandate requiring all individuals in California wear masks in all public indoor settings regardless of their vaccine status. The mandate is for a one month period from December 15, 2021 through January 15, 2022.

More information can be found at the CDPH website, here.

Update: No Enforcement of OSHA’s COVID-19 ETS

As you’ve probably read in the news, a number of legal challenges have been filed against the OSHA COVID-19 vaccination/testing ETS for large employers.  The 5th Circuit issued a stay on enforcement of the ETS on November 6th and then, later on November 12th reaffirmed that stay holding that the challengers of the ETS are likely to succeed on the merits of the case.

5th Circuit Temporarily Blocks OSHA’s New COVID-19 Standards Mandating Employers With 100 or More Employees to Require Vaccination or Regular Testing

UPDATE: Fifth Circuit blocks enforcement of the federal OSHA COVID-19 vaccine/testing mandate.

On November 6, 2021, a panel of the fifth circuit issued a stay against the enforcement of OSHA‘s new emergency temporary standards mandating large employers to require vaccination or testing of their workforce. The court found that there are grave statutory and constitutional issues related to the mandatory emergency temporary standards that need to be addressed.