On Thursday, November 5, 2021, federal OSHA published a vaccinate-or-testing mandate for employers with 100 or more employees (see here). The new rules are voluminous, and from the start, were bound to be controversial and subject to legal challenge. One such challenge has temporarily succeeded—at least for now—as a federal court of appeal has temporarily stayed (halted) the implementation of these federal OSHA rules.
Does this Mean Large Employers Can Ignore the Federal OSHA Rules?
We advise against it. While a federal court has stayed the implementation of those rules, that stay is temporary, and we expect that stay to be eventually lifted by the same court, a different court of appeal, or even the U.S. Supreme Court. In the meantime, the rules’ compliance deadlines (early December 2021 and early January 2022) have not been extended at present by federal OSHA or by any court.
So, What Should Employers Do in the Interim?
Employers should start familiarizing themselves with the extensive OSHA rules and start thinking about how they will implement those rules on a day-to-day basis. For some California employers, this process may not be too painful as they have already adopted a vaccination-or-testing mandate and will just need to update their mandate to be in conformity with the latest federal standard. For others, though, this process will be cumbersome and time-consuming. In the end, employers should plan now so that when the presently scheduled compliance deadlines arrive, employers are ready to prove compliance by those deadlines and avoid penalties.
How Have the Other Federal COVID-19 Regulations Been Impacted?
Employers may also be wondering if the recent stay of the federal OSHA rules affect the other federal COVID-19 regulations that have been recently enacted for federal contractors and healthcare facilities. The short answer: No. The federal court of appeal’s stay only affects the federal OSHA rules for large employers and does not touch upon the validity or legality of other COVID-19 rules and regulations.
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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.