UPDATE: On November 12, 2021, the Fifth Circuit affirmed its decision to stay the Labor Department’s rule requiring companies with at least 100 employees to mandate COVID-19 vaccinations or weekly tests, ruling that it is likely unconstitutional. Accordingly, the emergency temporary standard is stayed pending the outcome of the litigation.

The United States Department of Justice has also notified the Fifth Circuit that the judicial panel on multidistrict litigation will step in because there are multiple challenges to the emergency temporary standard in other court of appeals. According to federal rules, the legal challenges to the OSHA emergency temporary standard will be consolidated and heard by a single U.S. Circuit Court of Appeals. The judicial panel on multidistrict litigation will determine which U.S. Circuit Court of Appeals will hear the consolidated litigation. The court to hear the litigation will be randomly selected from the court of appeals in which petitions for review have been filed.

On November 16, 2021, the judicial panel on multidistrict litigation randomly selected the United States Court of Appeals for the Sixth Circuit Court to hear the consolidated claims against the OSHA emergency temporary standard. OSHA has also announced that they temporarily “suspended activities related to the implementation and enforcement” of the emergency temporary standard pursuant to the Fifth Circuit stay pending developments in the litigation.

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On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) published the COVID-19 Vaccination and Testing emergency temporary standard that requires employees of covered companies to either get vaccinated for COVID-19 or wear face masks and take weekly tests. The standard went into effect the day it was published and will remain in effect until superseded by a permanent standard or enjoined by a court. OSHA determined that the many employees in the United States will be in grave danger from exposure to SARS-CoV-2 in the workplace if they are not fully vaccinated against COVID-19. Workplace outbreaks have been documented since the start of the pandemic. For example, a congressional committee recently found that 59,000 meatpacking workers were infected with COVID-19 and that at least 269 of them died.

OSHA has the authority to create emergency temporary standards when it determines that workers are in grave danger due to exposure to substances or agents that are toxic or physically harmful, or to new hazards that require an emergency standard in order to protect the workers. Once OSHA publishes an emergency temporary standard, it must complete procedures for adopting a permanent standard. Typically, a final ruling will be made within six months. Emergency temporary standards can be challenged in the appropriate U.S. Court of Appeals. A challenge has already been brought in the Fifth Circuit Court of Appeals and is discussed in more detail below.

COVID-19 Emergency Temporary Standard

Employees at companies with 100 or more employees will have to either get vaccinated for COVID-19 or wear facemasks and take weekly COVID-19 tests. An employee is considered fully vaccinated after completing primary vaccination with an FDA approved, or authorized for emergency use, COVID-19 vaccine (e.g., two doses of the Pfizer or Moderna vaccine, one dose of the Johnson & Johnson vaccine) or any other COVID-19 vaccine approved for emergency use by the World Health Organization. Under the OSHA standard, employers must pay workers for the time it takes to get vaccinated and provide sick leave to recover from any side effects. Proof of vaccination can be requested through vaccine cards.

The standard will cover more than 84 million workers, about two-thirds of the nation’s private-sector workforce. In states and territories with OSHA State Plans, the standard will also cover public sector employees of state and local governments, including educators and school staff. The standard explicitly states that it preempts any inconsistent state and local requirements regarding face masks and COVID-19 vaccinations. The standard also allows for collective bargaining agreements or other negotiated agreements over the mandate’s requirements. The standard specifically exempts employees who work exclusively outdoors.

Under the standard, employers must establish, implement, and enforce a mandatory vaccination policy. An employer may only be exempted from this requirement if the employer establishes, implements, and enforces a mandatory policy for their employees that requires the employee to choose to either be fully vaccinated against COVID-19 or provide proof of being tested for COVID-19 at least once a week in addition to wearing a face mask when indoors. Employers cannot prevent employees from voluntarily wearing a face mask, and employers must report to OSHA any work-related COVID-19 fatalities and in-patient hospitalizations within 8 and 24 hours, respectively, of the employer learning of them.

Costs

The standard does not require employers to pay for or provide testing to workers who decline the vaccine. However, collective bargaining agreements or other negotiated agreements can create a requirement for employer payment for testing. The standard also does not require employers to pay for any costs associated with face coverings unless required by other laws, regulations, collective bargaining agreements, or negotiated agreements.

Enforcement

Employers are responsible for the enforcement of the OSHA standards. The employer must determine and keep track of the vaccination status of each employee. If employees fail to provide documentation of COVID-19 test results, the employer is responsible for keeping those employees removed from the workplace until the employees provide a test result.

Deadline

Employers have 30 days after publication, until December 6, 2021, to comply with all standard requirements, including the paid time off and unvaccinated worker masking requirements. The only exception is compliance with COVID-19 testing for employees who are not fully vaccinated. For this specific requirement, employers have 60 days after publication, until January 4, 2022, to comply with allowing sufficient time for unvaccinated employees to become fully vaccinated.

Penalties

The OSH Act determines the penalties associated with failure to comply with the requirements of any standard, rule, or order that OSHA promulgates. Civil penalties range from $5,000 to $70,000 for willful and repeated violations. Employers who receive citations for violations of standards, rules, or orders can receive civil penalties up to $7,000 for each violation and failure to correct previously cited violations. Employers can also be criminally liable for willful violations of any standard, rule, or order that causes employee deaths with up to a $10,000 fine for the first conviction, up to six months in jail, or both. Anyone who makes false statements and representations can also be punished by a fine of no more than $10,000, imprisonment for no more than six months, or both.

Fifth Circuit Court of Appeals Emergency Motion to Stay

On November 6, 2021, the United States Court of Appeals for the Fifth Circuit granted a nationwide stay on the COVID-19 Emergency Temporary Standard. The stay means that the standard will not go into effect until the stay is lifted. The petitioners are the states of Louisiana, Mississippi, South Carolina, Texas, and Utah, along with various employers and employees located in those states, who argue that the emergency temporary standard issued by OSHA exceeds OSHA’s statutory authority under the Occupational Safety and Health Act of 1970 (“OSH Act”). The petitioners also argue that the vaccine and testing mandate exceeds the federal government’s powers under the Interstate Commerce Clause and the Necessary and Proper Clause of the United States Constitution and that the authority that OSHA has is an unlawful delegation of legislative power.

The Fifth Circuit granted the petitioners’ emergency motion to stay based upon petitioners’ argument that the emergency temporary standard is not related to the workplace, the standard does not address a grave danger, and the OSHA exceeded its authority by issuing the standard because it is not necessary. Petitioners also alleged that they would suffer irreparable harm without a stay, the stay would not harm OSHA, and the stay was in the public interest.

The government has responded, arguing that staying the OSHA standard will harm the government and the public. The government also asserted that OSHA made a reasonable conclusion that the standard is necessary to address a grave danger, that petitioners’ requests for relief are premature because there is little possibility of harm until December 7, and that the delegation of power to OSHA is constitutional. The petitioners’ have filed their reply, the emergency motion to stay is subject to expedited judicial review, and the deadline for filing was November 9. Therefore, it is now up to the court to determine whether the emergency stay remains in effect. The court is likely to make its decision soon given the expedited judicial review.

Individual Company Mandates

OSHA is not alone in requiring vaccine mandates for employees. For example, Tyson Foods announced in August of 2021 that they would require all team members located at United States office locations to be fully vaccinated by October 1, 2021, and all remaining team members to be fully vaccinated by November 1, 2021. As of October 26, 2021, over 96% of the team members at Tyson Foods had been vaccinated.

Lawsuits

While the number of vaccinated team members is incredibly high at Tyson Foods, it has not been without pushback. There have been several lawsuits filed arguing that Tyson Foods discriminated against its employees. In Tennessee, two lawsuits were brought, both claiming that Tyson discriminated against their employees under the Tennessee Human Rights Act and the Tennessee Disability Act by requiring them to be vaccinated with the COVID-19 vaccine before November 1, 2021, or else be put on unpaid leave with no assurance of their reclaiming their jobs. These lawsuits are in the very early stages and are currently facing jurisdictional challenges.

In Missouri, a similar lawsuit was brought in the Circuit Court of Barry County, State of Missouri, claiming that Tyson Foods has discriminated against employees who request religious or medical accommodations from Tyson’s COVID-19 vaccination mandate policy. Like the Tennessee cases, this one is also in the early stages. Most recently, the case was removed from the Circuit Court of Barry County to the United States District Court for the Western District of Missouri.

Conclusion

The OSHA emergency temporary standard is set to go into full effect on December 6th for workplaces that employee more than 100 people. With the 5th Circuit challenge to OSHA’s emergency temporary standard for COVID-19 vaccination and testing in the workplace, there is currently a temporary nationwide stay on the mandate for businesses with more than 100 people. However, the stay will not necessarily affect the deadlines set in the standard if the stay is lifted before those deadlines. If the legal challenge is not resolved by the deadlines, the standards will not be in effect until a decision is reached.

 

To view the COVID-19 Vaccination and Testing Emergency Temporary Standard, click here.

To view the entire preamble to the COVID-19 Vaccination and Testing Emergency Temporary Standard, click here.

To view the 5th Court of Appeals petitioners’ brief, click here.

To view the emergency motion to stay, click here.

To view the government’s response to the emergency stay motion, click here.

To view the petitioners’ reply in support of the emergency stay, click here.

To view the Tennessee Tyson Foods lawsuits, click here and here.

To view the Missouri Tyson Foods lawsuit, click here.

For more labor law resources, click here.

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