NAICU Washington Update

OSHA Halts Enforcement of Rule on COVID-19 Vaccine and Testing

November 19, 2021

Responding to a ruling by the U.S. Court of Appeals for the Fifth Circuit, the Occupational Safety and Health Administration (OSHA) has suspended enforcement of its rule that established an emergency temporary standard (ETS) requiring large employers to impose a vaccine or testing mandate on their employees. 

Meanwhile, in a separate action, the Safer Federal Workforce Task Force has extended the deadline by which federal contractors must comply with the recent Executive Order (EO) requiring them to impose a vaccine mandate on their employees. According to updated guidance, the new compliance date is January 18, 2022.

Since publication of the OSHA rule on November 5, there have been numerous legal challenges filed. Last week, in response to one of these lawsuits, the Fifth Circuit issued a preliminary injunction ordering OSHA to temporarily suspend implementation and enforcement of the ETS. All of the legal challenges, including the case that was the subject of the Fifth Circuit’s ruling, have now been consolidated and will be heard by the Sixth Circuit, which has the authority to revoke, modify, or extend the preliminary injunction issued by the Fifth Circuit. 

However, colleges and universities should be aware that suspension of the rule does not mean the initial deadlines in the ETS will be changed if the Administration receives a favorable court ruling.  Institutions should be advised that they may wish to continue taking internal steps toward implementation, such as those outlined in the webinar NAICU hosted on Wednesday in case the rule is reinstated.

Both the OSHA ETS and the EO are part of the broad COVID-19 action plan announced by President Biden in September.  

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