NATSO Update: COVID-19 Emergency Temporary Standard


Since the 5th Circuit Court of Appeals issued a stay on OSHA's vaccine mandate, the case was transferred to the 6th Circuit. For the time being, the rule remains on hold. The Biden Administration is asking the 6th Circuit to set aside the 5th Circuit's stay, and allow the vaccine requirement. In the meantime, OSHA has suspended implementation of the rule. 

If the 6th Circuit keeps the vaccine mandate on hold, it is unlikely that the Supreme Court would overrule what would be two different circuits' opinions on the matter.  

Whatever happens at the 6th Circuit, the dissatisfied party is likely to appeal the decision to the Supreme Court.  The Supreme Court must then decide for itself whether to leave an existing stay in place or to impose a stay of its own (if the 6th Circuit has lifted it). 

In the event that the Stay remains in place, it is very likely that the January 4 compliance deadline will be pushed back at least several weeks. OSHA has delayed the deadline for the public to comment on the mandate from December 6 until mid-January. NATSO plans to file comments. 

The federal government has softened its position on the vaccine mandate for federal contractors, delaying that compliance deadline from December 8 until January 4. There are also indications that the government won't require contractors to fire unvaccinated employees.  All of these are positive indications that the vaccine mandate will, at the very least, be delayed.  The prudent course of action for businesses with more than 100 employees is to continue planning so that they can quickly come into compliance if necessary. 

OSHA's current "Emergency Temporary Standard" automatically expires in early May. For any vaccine mandate to be in place after that date, OSHA would have to pursue a separate, traditional rulemaking. 

Several trade associations have created, a website where NATSO members can reach out to Congress and express opposition to the OSHA Emergency Temporary Standard, as well as provisions in Congress's reconciliation bill that dramatically increase penalties for OSHA violations.  The website includes a description of the issues as well as a web portal that will send a pre-populated letter directly to members of Congress. The letter can be edited.

Republican officials are using unemployment benefits to undermine vaccine mandates. At least Florida, Iowa, Kansas, and Tennessee have changed rules to allow benefits for workers who are fired or quit over vaccine requirements. 

On Thursday, Dec. 2, President Biden announced new actions aimed at combating COVID-19 as the country faces an expected uptick in cases this winter and the emergency of a new variant, Omicron.  The strategy includes, among other things, a new requirement for insurers to cover the cost of at-home COVID-19 tests through guidance the Administration plans to issue in January. More information on the 9-pronged plan is available here.

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