Archives for December 2021

Supreme Court Will Decide Fate of Private Employer Vaccine-or-Test Mandate

The legal battle over the Biden Administration’s COVID vaccine/testing mandates has produced a dizzying array of conflicting court rulings, leaving employers at a loss as to how, if, and when to comply. 

To bring you up to speed, earlier this month, a 3-judge panel of the 6th Circuit Court of Appeals ruled that OSHA’s vaccine-or-test Emergency Temporary Standard (“ETS”) for workers at companies with 100 or more employees could take effect. Last week, the U.S. Supreme Court announced it will hear argument on the private employer and health care worker mandates on January 7, 2022.  The Administration has put on hold its implementation of the federal contractor vaccine mandate in response to a federal district court’s order enjoining the Executive Order on a nation-wide basis. 

As we await the Supreme Court’s ruling, the private employer vaccine-or-test ETS is in effect.  However, OSHA announced that it will not issue citations for noncompliance with the ETS requirements before January 10, 2022, with the exception of the standard’s testing requirements, which will not be enforced until February 9, 2022, so long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard.  Employers who fail to comply with the ETS may be subject to penalties, up to $13,653 per violation for serious violations.   

While it’s possible the Supreme Court will invalidate or stay enforcement of the ETS before January 10, it’s equally possible the ETS will remain in effect.  Given this awkward timeline, covered employers have to decide NOW whether to comply with the ETS or delay compliance (and risk incurring penalties) pending the outcome of the Supreme Court ruling.  Regardless of the Supreme Court’s ruling, employers of any size can voluntarily implement a vaccine mandate or vaccine-or-test mandate, provided they make exceptions for employees due to their sincerely held religious beliefs or medical condition.  While some states (not AZ) have banned such voluntary employer vaccine mandates, those laws are likely preempted (and therefore unenforceable) by federal law.       

To assess what compliance with the private employer ETS entails, we encourage you to review OSHA’s summary of the ETS requirements (OSHA ETS Home Page), as well as the FAQ’s concurrently issued by OSHA. (FAQs).