Federal Vaccine Mandate for Larger Employers on Hold Figure

November 29, 2021  |  COVID-19; Insights

Federal Vaccine Mandate for Larger Employers on Hold

By: , Yana Zheng

On September 9, 2021, President Biden released a new COVID-19 Action Plan, “Path Out of the Pandemic.”  In accordance with the Plan, on November 5, 2021, the Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS),  requiring employers with 100 or more employees to ensure their workforce is fully vaccinated or require any unvaccinated employees to produce a weekly negative test results and wear a mask in order to work. Since then, more than 30 federal lawsuits have been filed nationwide to challenge the ETS.  

One day after the ETS was issued, the 5th Circuit Court of Appeals issued a temporary stay of its enforcement, pending further judicial review.  On November 12, the court extended its stay.  For an emergency regulation to be upheld, OSHA must show that it is necessary to protect employees from “grave danger” due to exposure to “substances or agents determined to be toxic or physically harmful.”  The 5th Circuit identified multiple reasons why, in its view, the ETS should be enjoined, including that it does not pass constitutional muster and, even if it did, it exceeds OSHA’s authority under the Occupational Safety and Health Act (OSH Act).  Among other conclusions, the court stated COVID-19 does not pose a grave danger because the virus is “non-life threatening to a vast majority of employees,” and does not arise to such a toxic or physically harmful “substance” or “agent” contemplated by the OSH Act.

Following the 5th Circuit’s rulings, the federal Judicial Panel on Multidistrict Litigation, through a lottery, selected the 6th Circuit Court of Appeals to hear all of the legal challenges to the ETS. Ultimately, it is highly likely that the U.S. Supreme Court will be the final decision-maker on the enforceability of the ETS.

For the time being, the stay remains in place, meaning there is no legal obligation for any covered employer to comply with the ETS.

Disclaimer: This summary is provided for educational and informational purposes only and is not legal advice. Any specific questions about these topics should be directed to attorneys Frank N. Gaeta and J. Allen Holland.

About Rich May. P.C.

Rich May, P.C., a law firm founded in 1937 and located in the heart of Boston’s financial district, concentrates its practice on corporate, financial, civil litigation, energy, real estate, entertainment and wealth planning matters. The firm’s clients include a broad group of businesses in New England and throughout the country. Rich May provides the breadth and depth of expertise generally associated with large, national firms, while maintaining the prompt, personal service found in smaller, regional firms. Rich May’s clients have direct access to experienced attorneys who are familiar with both the client and the area of inquiry and can provide timely and practical legal solutions.

Rich May has been elected and admitted as a member of Ally Law. This membership, which provides affiliations with more than 2,800 lawyers at over 70 firms in 50 countries, supplements our ability to assist clients throughout North America and around the world.