UPDATED: Fifth Circuit Issues Temporary Stay on Vaccine Mandate

Originally Posted November 5th, 2021; Last Updated November 8th, 2021 On November 6th, 2021, the United States Court of Appeals for the Fifth Circuit issued a temporary stay on the vaccine mandate. Originally, on November 4th, the Occupational Safety and Health Administration (OSHA) announced a new emergency temporary standard and vaccination policy. Generally, under this emergency temporary standard (ETS), covered employers would implement a mandatory COVID-19 vaccination policy. Specifically, the vaccine mandate would cover employers with over 100 employees. According to the court, “petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.” The temporary stay on the vaccine mandate would freeze enforcement of the ETS pending expedited judicial review. Earlier, on October 12th, 2021, OSHA submitted the ETS to the White House’s regulatory office.

Background of the Original Emergency Temporary Standard

Previously, President Joseph Biden had introduced a six-pronged strategy to combat COVID-19, which included an order for the vaccine mandate. Subsequently, OSHA made the ETS a top priority. According to OSHA, the coronavirus has led to the deaths of 750,000 people in the U.S. since 2020. Meanwhile, the agency states that the coronavirus has infected millions more. Further, OSHA estimated that this rule would save thousands of lives and prevent more than 250,000 hospitalizations due to COVID-19 exposure in the workplace.

Overview of the Vaccine Mandate

Particularly, covered employers would develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopted a policy requiring employees to choose either to:

• receive a COVID-19 vaccination; or
• undergo regular COVID-19 testing and wear a face covering at work.

Specifically, the ETS would not require employers to pay for testing or face coverings. However, to comply with other laws, regulations, and collective bargaining agreements, some employers would indeed be required to pay for testing. In addition, employers would provide paid time for workers to get the COVID-19 vaccine. Additionally, the ETS would require employers to do the following:

• Determine the vaccination status of each employee by obtaining acceptable proof of vaccination;
• Maintain records and a roster of each employee’s vaccination status;
• Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis, and remove such employees from the workforce, regardless of vaccination status, until they meet required criteria;
• Ensure each worker who is not fully vaccinated tests for COVID-19 weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer); and
• Ensure that, in most circumstances, each unvaccinated employee wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

Businesses that did not comply would face significant OSHA fines. Finally, employers would be required to comply with:

• most requirements within 30 days of publication; and
• testing requirements within 60 days of publication.

Implications of the ETS and the Fifth Circuit’s Temporary Stay

Overall, OSHA estimates that the ETS would cover two-thirds of the U.S. private-sector workforce. Meanwhile, within the 26 states and two territories with OSHA State Plans, the ETS would cover state and local government-employed public sector workers. These workers would include educators and other school staff. Ultimately, the Fifth Circuit Court’s stay on the vaccine mandate came in response to a joint petition from several businesses and groups. In addition, the states of Texas, Louisiana, Mississippi, South Carolina, and Utah all submitted petitions.

Personnel Concepts’ COVID-19 Resources

Undoubtedly, the global COVID-19 pandemic has affected every business in the United States. From OSHA guidelines for social distancing and masks to stay-at-home orders, the workplace has undergone a significant transformation. Therefore, Personnel Concepts has created a variety of COVID-19 Resources. In addition to the original ETS and vaccination policy for employees, employers need to take steps to protect the health of other individuals within the workplace. Personnel Concepts’ COVID-19 Resources help employers communicate important health information to employees, customers, and visitors. As new information is frequently released, these resources and solutions are regularly updated.