Vaccine Mandates Still In Legal Flux

Legal battles continue to rage up to the level of the Supreme Court over the Biden administration’s attempt to use the Occupational Health and Safety Administration to enforce mandated COVID-19 vaccination on employees in companies with 100 or more employees. 

In the face of continuing legal challenges, OSHA has announced that it will exercise “enforcement discretion” following the decision by a three-judge panel of the Sixth Circuit U.S. Court of Appeals to dissolve the Fifth Circuit’s stay of OSHA’s COVID-19 emergency temporary standard (ETS) for employers of 100 or more workers. Within hours of the Sixth Circuit’s decision, however, several petitioners filed emergency appeals asking the U.S. Supreme Court to reinstate the stay of the ETS pending further judicial review. The Supreme Court has asked for responses to these requests by December 30.

No Citations Before February 9

OSHA said it will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising “reasonable, good faith efforts” to come into compliance with the standard.

According to the latest newsletter from The American Waterways Operators, this decision means that companies must prepare a policy by January 10 that includes: 1) vaccination requirements, including how employees can verify vaccination status and providing PTO and sick leave for vaccination and recovery; 2) testing requirements, including how testing will be conducted, how results will be communicated, and how employers will verify and document test results; 3) workplace removal and return-to-work criteria for employees who report positive test results; and, 4) face covering requirements for unvaccinated employees. 

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Most employers already have these or similar policies in place. OSHA has developed templates for both a mandatory vaccination policy and a vaccination or testing and face-covering policy that employers can use. 

Legal Challenges

Some of the legal challenges question whether OSHA has the statutory authority to require vaccines, and some judges have looked favorably on these arguments. Challengers argue that the Occupational Safety and Health Act  gives OSHA the statutory mandate only to “assure safe and healthful working conditions for working men and women” in the workplace, but not to order sweeping health measures not directly related to specific working conditions.

AWO said when the court-ordered stay of the ETS was dissolved, the Coast Guard resumed its discussions with OSHA to clarify the standard’s application to mariners. 

The Coast Guard maintains that its 1983 Memorandum of Understanding with OSHA gives it alone the statutory authority to prescribe and enforce standards affecting the occupational health and safety of mariners on inspected vessels, and that the Coast Guard should determine how the standard is implemented for the unique characteristics of the vessel workplace. AWO said it “will continue to stay close to these discussions and advise members of developments.”