To get more people vaccinated, the Biden administration has put out several vaccination mandates causing HR Professionals to struggle to keep the businesses that they serve in compliance, namely, Federal Executive Orders that require people to be vaccinated if the federal government employs them, including federal contractors and subcontractors, the Centers for Medicare and Medicaid (CMS) Mandate, and OSHA’s COVID Emergency Temporary Standard (ETS).

 Just when the HR professionals got their minds wrapped around the details of the regulations and started creating and implementing programs to comply, programs that caused no small amount of employee discontent creating a host of new employment practice issues for HR to manage, lawsuits were filed against the mandates, most of which were granted stays (temporarily stopping a judicial proceeding) by the courts. Those stays granted HR Professionals an opportunity to tone down their efforts to be in compliance until the courts decided one way or the other the Constitutionality of the Administration’s mandates.

Many in the HR community thought it would have been a nice break if lawsuits filed against the mandates would have stayed tied up until after the holidays, but no such luck was to be had.

After a federal court in Missouri halted the CMS Rule in 10 states, a federal court in Louisiana issued a nationwide injunction purporting to enjoin the CMS Rule for the rest of the country. The government sought review by the Federal Appeals Court to “stay” (or halt) the nationwide injunction.

On December 15, the Fifth Circuit Court of Appeals issued its opinion, partially upholding and partially reversing the district court’s injunction. The Fifth Circuit noted that the government is likely to prevail on limiting the scope of the nationwide injunction, and as such, the appellate court “stayed” the injunction with respect to jurisdictions outside of the 14 states included in the lawsuit.

In other words, although the CMS Rule is still halted in the 14 states that brought the lawsuit in Louisiana, and in the ten states that are part of the Missouri lawsuit, for everywhere else, the injunction is lifted. At this time, CMS is still enjoined (prohibited to enforce the mandate) in the state of Arkansas, given affected HR professionals a little breathing room.

But then on Friday, December 17, 2021, the Sixth Circuit Court of Appeals issued its long-awaited opinion addressing the stay of the Occupational Safety and Health Administration’s emergency temporary standard on COVID-19 (ETS). The Sixth Circuit, in a 2-1 decision by a 3-member panel, dissolved the temporary stay previously issued by the Fifth Circuit Court of Appeals halting enforcement of the OSHA ETS. 

But just as HR Professionals are jumping to the left while they do the mandate hokey pokey, they are looking to the right because it is highly probable that this is not the end of the litigation over the ETS. According to a report by the National Law Review, “Petitioners likely have two options: (i) seek a review by the entire Sixth Circuit Court of Appeals (known as an en banc review), or (ii) appeal to the U.S. Supreme Court.

Clearly, all roads are leading to a possible consolidation of all three government actions before the Supreme Court. That legal process could take weeks to several months. But, for now, the OSHA ETS is back, and OSHA has the authority to enforce it.

Below is the statement released by OSHA after the ruling:

“OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA 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. OSHA will work closely with the regulated community to provide compliance assistance.”

As of today, HR Professionals are back to scrambling to implement their programs to maintain compliance. OSHA’s website offers helpful guidance to get in compliance with the ETS.

 The Legislative Affairs Committee will do what we can to keep NOARK Members updated, but things have been changing so fast that they might change again before the ink is dry on this post, or should I say before the pixels are fully formed. But for now, HR professionals should seek to be in compliance with the ETS by the deadlines.

Best Regards,

Russell Holt, SPHR, SHRM-SCP 

Legislative Affairs Committee