Update: Federal OSHA Rules – A Game of Limbo

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A few weeks ago, we told you that the implementation of the federal OSHA vaccine-or-testing mandate for employers with 100 or more employees was stuck in limbo. At that time, the new rules were temporarily stayed (halted) until a further in-depth review could be conducted by a federal court of appeals. On November 12, 2021, that federal appeals court “permanently” enjoined (blocked) the implementation of OSHA’s rules.  As a result of the court’s decision, OSHA has paused its own enforcement of the rules—a fact noted on their website.

At present, OSHA’s pause is temporary because OSHA expects the federal court’s “permanent” injunction to be eventually overturned, as do several other legal observers.  In fact, related litigation is pending before a different court of appeal—and these cases may eventually make it up to the U.S. Supreme Court. So, this may not be the end of the federal OSHA rules.

What to do now?

If your business is a large employer, you probably already started the process of crafting a federal OSHA COVID-19 policy before the federal court halted the enforcement of the rules. We recommend that you do not abandon those efforts entirely but judiciously continue to take steps to minimize exposure or transmission of COVID-19 at work. At worst, these measures may protect your company from a risk-management perspective (e.g., they could help minimize the opportunity for an employee to claim your workplace poses a health and safety risk). At best, these measures will dovetail nicely with the federal OSHA’s requirements if and when those rules are re-enforced (as to this latter point: there is no saying when those rules may be resurrected; it could be tomorrow or months away—or never.)

In addition, we urge businesses to consider if other COVID-19 regulations are at play. For instance, healthcare providers may be subject to the recent spate of regulations issued by the Centers for Medicare & Medicaid Services (“CMS”). Likewise, federal contractors may be affected by the Biden Administration’s recent rules for federal contractors. And businesses may be subject to state-specific regulations. None of these other sources of law are affected by the present injunction of the federal OSHA rules. If your business is subject to one of these alternative sets of rules, it is imperative that you bring your company into compliance immediately.

We will continue to monitor the status of the federal OSHA rules and update you as necessary.

Update – December 2, 2021: On November 30, 2021, a federal district court in Louisiana issued a nationwide injunction against a vaccination mandate that the Centers for Medicare and Medicaid Services (“CMS”) (a federal agency) issued for healthcare workers, including hospitals and outpatient surgery centers. The federal court held that the CMS’s rules were illegal and could not be legally applied anywhere in the United States. The court has enjoined the enforcement of those rules until further notice.

Likewise, on that very same day, a federal district court in Kentucky issued an injunction against the Administration’s vaccination mandate for federal contractors in an entirely unconnected case. However, unlike the injunction against the CMS’s rules, the injunction against the federal contractor rules applies only to contractors in Kentucky, Ohio, and Tennessee. It is possible that another court will widen the scope of this injunction, but as of this post, only federal contractors in the aforementioned states are affected by this injunction.

What are businesses supposed to do with all of these quickly evolving legal updates? For one thing, they should assess their strategy to prevent COVID-19 at their workplace. With—or without—the Administration’s mandates, employers should be implementing aggressive measures to counteract the dangers that COVID-19 poses in the workplace. This is true both from a risk mitigation and employee retention perspective. For another thing, businesses must ensure that they are fully compliant with state and local regulations, which are not affected by the recent federal injunctions. Finally, businesses should keep up to date with the ever-changing landscape of COVID-19 rules and regulations and be agile enough to adopt and implement new measures as needed.

Update – December 7, 2021: Shortly before the Thanksgiving Holiday, the United States Government (i.e., the party advocating for the rules) filed a motion in the Sixth Circuit to lift the prior court’s stay of the federal OSHA rules. All responses and replies to the Government’s motion are due no later than December 10, 2021—just a few days away.

So, where does this leave employers now? Simply put, it leaves them hanging until the Sixth Circuit decides how to rule on the current stay of the federal OSHA rules. Fortunately, based on the court’s briefing schedule, we have reason to expect that the court will render a decision not too long after December 10. In the interim, employers should monitor the situation very closely and be ready for a potential decision this month.

For more information, please contact us at info@mnklawyers.com.

This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between MNK Law and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.