OSHA is suspending enforcement of the government's new employer vaccine rule
The Labor Department's Occupational Safety and Health Administration said it is suspending its enforcement of the Biden administration's new rules ordering larger employers to either require that their workers get vaccinated against "emergency temporary standard" or undergo weekly testing.
OSHA, which posted the announcement on its website, added that it "remains confident in its authority to protect workers in emergencies."
The agency's decision to stop implementing and enforcing the new rule comes after a federal appeals court on Friday reaffirmed an earlier temporary halt to the Biden administration's vaccine rule and ordered OSHA to stop enforcing or implementing the regulation.
The future of the government directive remains uncertain, with the case headed to the Sixth Circuit Court in Ohio, which the National Law Review says comprises a majority of Republican-appointed judges.
Meanwhile, businesses across the nation have mounting questions over what this means for the new vaccine rule, a 490-page order with complex requirements that experts say will require time and effort to ensure compliance. Under the original plan, by December 5, employers with more than 100 employees must choose whether their workers must get fully vaccinated or undergo weekly testing,
By January 4, those businesses must implement the rule — a timeline that doesn't provide employers much leeway if the Sixth Circuit upholds the rule. Because of the tight deadline, employment attorneys have said they are encouraging businesses to move forward with compliance to avoid being caught unprepared if the regulation, also called an "emergency temporary standard" (or ETS), withstands legal challenge.
"A stay is not a determination of the merits of the ETS itself — a stay is a technical, procedural tool to prevent something from happening," said Chuck Kable, chief legal and HR officer at Axiom Medical, a company that provides occupational health services, on a conference call to discuss the status of the regulation. "The government will say, 'We want to push the play button, not the pause button'" and ask for the stay to be lifted, he said.
It's possible that the temporary halt to the regulation could be lifted, reaffirmed or partially lifted, said Holland & Knight partner and OSHA expert Gina Fonte.
"Generally the legal profession has been advising clients, 'You need to be ready,'" Fonte said. "Would you be prepared to be live if the court turns around and says everything is back in place tomorrow?"
December deadline
Kable thinks the Ohio court will rule on the stay within weeks, although maybe not before the December 5 deadline. But the issues involving the temporary stay will likely be resolved before the January 4 deadline for employers to institute the new COVID-19 rules.
"Obviously people are confused, concerned — they don't know what to do," he added. "But a prudent employer will take steps to prepare" in case the stay is lifted and the ETS moves forward, Kable said.
Companies that fail to comply with the COVID-19 order could face stiff fines — almost $14,000 for each employee who fails to comply with the rule and up to $136,000 for businesses that are found to be in "willful violation" of the requirements.
In the meantime, the case challenging the legal authority of OSHA to create and enforce the ETS could take months to play out, and is likely to end up before the Supreme Court, Kable said.
"Don't draw any inferences from OSHA saying they are suspending enforcement — they have to because a court said they have to," he added. "I've read the briefs, and my personal opinion is that the arguments presented by the government are strong and rational."
