On November 4, the Occupational Safety and Health Administration (OSHA) released its much-anticipated mandate-or-test workplace vaccine emergency rule (“the Rule”).  The Rule requires employers with 100 or more employees to either mandate covered employees be fully vaccinated against COVID-19 or require covered employees that are not fully vaccinated to test for COVID-19 at least weekly and wear a face covering.  The Rule went into effect immediately on November 5 with employers expected to comply by no later than January 4, but implementation has since been halted due to pending legal challenges.  For more information of the Rule requirements and specifics, see our prior article It’s Here: OSHA’s Rule Mandating COVID Vaccinations or Weekly Testing for Employers.

The Rule Faces Legal Challenges

The Rule immediately faced challenges from across the country – from business groups, religious organizations, as well as labor unions.  Lawsuits have been filed challenging and seeking to block the Rule in the U.S. Circuit Court of Appeals, including for the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuit Courts.

On November 6, just two days after the announcement of the Rule, the Fifth Circuit Court of Appeals issued a temporary stay blocking the Rule until it could more closely examine the legality of the Rule citing “grave statutory and constitutional issues.”  The stay temporarily halted the Rule’s implementation and ordered OSHA to take no steps to implement or enforce the Rule.

The Fifth Circuit three-judge panel set a fast tracked briefing schedule to allow the federal government and party challengers to argue over the validity of the Rule and whether a permanent injunction of the Rule should be issued.  In a unanimous decision, on November 12, the Fifth Circuit found the stay would remain in place, despite the federal government cautioning that such a freeze would “cost dozens or even hundreds of lives per day.”  The Fifth Circuit noted that the Rule, “threatens to substantially burden the liberty interests of reluctant individual recipients to put a choice between their job(s) and their jab(s).”

Additionally this week, in accordance with federal rules, the numerous legal challenges to the Rule have been consolidated and will be heard by the Sixth Circuit Court of Appeals.  The Judicial Panel on Multidistrict Litigation conducted a lottery on November 16, to select which U.S. Circuit Court of Appeal would hear the combined challenges.  The Sixth Circuit was randomly selected “from a drum containing an entry for each circuit wherein a constituent petition for review is pending.”  The Sixth Circuit is based out of Cincinnati and oversees courts in Ohio, Michigan, Tennessee, and Kentucky with the majority of the judges having been appointed by Republican presidents.  The Sixth Circuit will determine whether to maintain the Fifth Circuit’s stay.  If the Sixth Circuit moves fast just like the Fifth Circuit, a ruling may be issued by the end of this week, or soon thereafter.  A briefing schedule should be issued by the Sixth Circuit soon.  Ultimately, it is likely the pending legal challenge and fate of the Rule will be determined by the Supreme Court.  If the case proceeds to the Supreme Court, it could either take up the stay in full proceedings, with a briefing schedule and oral arguments, or it may utilize its so-called “shadow” or “emergency” docket.  Depending on how the Supreme Court proceeds, we could potentially see a decision as early as the end of this month or early next year.

OSHA’s Response to the Legal Challenges

As result of the Fifth Circuit’s stay order, OSHA, on November 15, issued a statement that it was suspending “activities related to the implementation and enforcement” of the Rule, but provided that OSHA “remains confident in its authority to protect workers in emergencies…” and that it is pausing its activities “pending future developments in the litigation.”  Therefore, as of today, OSHA’s implementation and enforcement of the Rule is temporarily halted.

Next Steps

While the future of the Rule remains uncertain due to the pending legal challenges, we do know the Rule has not been repealed, it has merely been suspended pending resolution in the courts.  Therefore, while the immediate deadline for compliance is now unknown, employers should still be preparing to comply with the Rule now.  It may take employers several weeks of planning to comply with the Rule.  Accordingly, employers should begin drafting their written mandatory vaccine, weekly testing, and mask mandate policies now, and evaluating logistics for obtaining and tracking weekly test results, so they are ready for implementation, if and when the Rule goes into effect.  If the Rule is revived, the current deadlines issued by OSHA could remain in effect.

Additionally, employers operating in states that have their own plans, should continue to follow any developments in their states, as states may very well adopt the spirit of the Rule.  For instance, California’s Occupational Safety and Health Standards Board planned to meet on November 18 to discuss adopting the Rule or a modified version that meets the Rule’s requirements.  However, due to the pending litigation before the Sixth Circuit, the California OSHA Standards Board announced it will delay the discussion on California’s adoption of the Rule until the federal litigation is resolved.

Sheppard Mullin is preparing a comprehensive guidebook for employers to follow in navigating this new Rule that will be published in the upcoming days.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size-fits-all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.