Update On OSHA’s Vaccine Or Test Mandate

Dealers recall that on November 5, 2021, the Occupational Safety and Health Administration (OSHA) published a COVID-19 Emergency Temporary Standard (ETS) mandating that employers with 100 or more employees require that those employees either (1) be vaccinated against COVID or (2) produce negative COVID tests on a weekly basis. The ETS requires compliance with certain mandates by December 6, with the testing mandate kicking in on January 4, 2022.

Numerous legal petitions challenging the ETS have been filed in every Circuit throughout the country and, on November 12, 2021, the U.S. Court of Appeals for the 5^th Circuit issued an order formally staying enforcement of the ETS while the litigation proceeds. On November 16, 2021, all the cases challenging the ETS were consolidated in the U.S. Court of Appeals for the 6^th Circuit.

The 5^th Circuit’s stay is read as having national applicability, therefore the ETS cannot currently be enforced in any State. Moreover, OSHA has placed notice on its website that it has “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

Dealers must wait on the decision from the 6^th Circuit Court of Appeals but are rightfully concerned about how long the ban on enforcement will remain in place while they assess their individual dealerships for compliance. There have been recent developments that provide some insight into what the future timeline will be before a decision is made on the consolidated cases.

Specifically, the OSHA filed a motion on November 23, 2021 urging the 6th Circuit to lift the 5th Circuit’s order banning enforcement of the ETS. How the court rules on that motion will determine how long enforcement of the rule will be stayed. Final briefs on OSHA’s motion are not due until December 10, 2021 and it is anticipated that the 6th Circuit will not rule until after that date. Accordingly, it is expected that at least until the 6th Circuit completes its review of the 5th Circuit’s order sometime after December 10, enforcement of the ETS will remain stayed (halted); this effectively puts the December 6 compliance date on hold for the time being.

NJ CAR recommends that dealers continue to review the requirements of the ETS for possible future compliance, however, decisions like whether to voluntarily mandate a vaccine policy or whether to continue to prepare for compliance with the ETS should be discussed with your Human Resources professionals and individual attorneys. NJ CAR, as always, will be available to answer general questions about the ETS and provide available information on the case before the 6^th Circuit Court of Appeals.