OSHA’s vaccine mandate could be headed to the Supreme Court
The fight over the judicial stay of OSHA’s Covid-19 shot-or-test rule, which the U.S. Court of Appeals for the Fifth Circuit issued Nov. 6, could be “the whole ballgame, from a practical standpoint,” said Sean Marotta, an appellate attorney at Hogan Lovells. He noted the six-month emergency rule is set to expire in early May and the case seems to be moving forward at a deliberate pace.
The Sixth Circuit, which was selected in a multi-circuit lottery to hear the consolidated case challenging the OSHA standard, indicated it won’t rule on the administration’s request to lift the stay until after Dec. 10.
That means the briefing will run past Dec. 6, the emergency standard’s first major compliance deadline. The rule calls for employers by that point to develop a vaccine policy, determine employee vaccination status, and provide leave for worker vaccination or recovery.
If the stay remains in place as of mid-December, then there’s near-zero chance the rule will be in effect by the Jan. 4 deadline for employers with at least 100 employees to ensure that their workers are fully vaccinated or to begin testing them regularly.
If government lawyers convince the Sixth Circuit to dissolve the order blocking the rule, OSHA still will be forced to move back that vaccination-or-testing deadline, said David Coale, an appellate lawyer with Lynn Pinker Hurst & Schwegmann LLP.
Expecting employers to ramp up for that Jan. 4 deadline with only a few weeks lead time would be unreasonably burdensome, change some of the rule’s cost-benefit estimates, and open OSHA to allegations that it violated legally mandated procedures for establishing regulations, he said.
The Sixth Circuit’s decision on the stay order could also trigger U.S. Supreme Court review.
California puts on hold mandate to require employee COVID vaccinations
A federal appeals court recently blocked the implementation of federal OSHA’s safety mandate designed to slow the spread of COVID-19 at larger companies. People who work in companies with 100 or more employees must either get vaccinated or wear a mask and be tested weekly, according to the rule. The state of California, watching that legal scenario play out, quickly backed away from a similar mandate, even though it has the right to enact one if it wants.
The timetable for determining the legality of OSHA’s move is unclear. A federal judicial panel has assigned the Sixth Circuit Court of Appeals in Cincinnati to handle a consolidation of cases from around the country arising from the agency’s emergency rule. This removes the matter from any of the other 11 regional courts of appeal, including the one in New Orleans, where two of the three judges were appointed by former President Donald Trump. But many legal experts believe the case will ultimately land before the U.S. Supreme Court.
In the meantime, nothing much will happen, including in California, which has its own workplace safety agency. Cal-OSHA is empowered to write statewide rules as long as they meet or exceed any federal standard, and in fact it met last week in part to do just that with regard to COVID and large companies. But the board subsequently backed down, saying it would wait for the federal case to be resolved.
OSHA suspends enforcement of COVID-19 vaccine mandate for businesses
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021. The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.
Successful office re-entry requires a focus on employee well-being
As employees transition from work-from-home to the hybrid environment of our post-pandemic world, they are seeking a new experience from their employers and their workplaces. Many teams and employees have faced prolonged isolation, stress and difficulties in establishing healthy boundaries between their personal and professional lives, leading to burnout and languishing. Many are also missing the social connections with their colleagues and are seeking collaboration in an environment separate from virtual meetings.
A well-thought-out and well-being-focused return-to-office plan offers an opportunity to renew company culture, enhance teamwork and restore healthy habits.
Addressing emotional well-being covers a wide range of considerations, including the creation of a safe space for employees to address their feelings and concerns, adopting new routines to accommodate a hybrid work model with a shift from the formerly static 9-to-5 day, and encouraging team members to acknowledge the moments and places where they can best take care of themselves. This all gets at the important human factor of business that leaders must integrate into their priorities and planning.
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