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OSHA's Vaccinate-or-Test Standard Is Delayed. What About Health Care Employers?

    Client Alerts
  • November 18, 2021

On November 12, the United States Court of Appeals for the Fifth Circuit issued an order staying the enforcement and implementation of the Occupational Safety and Health Administration’s vaccinate-or-test emergency temporary standard (ETS). Though the Fifth Circuit only includes Texas, Louisiana, and Mississippi, and other federal appellate courts have not yet ruled on the matter, OSHA released the following statement in response:

While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

On Tuesday, the Sixth Circuit Court of Appeals was chosen through a lottery to hear the consolidated challenges to the ETS. If contrary to the Fifth Circuit’s injunction, the Sixth Circuit’s decision (either through a panel or through the entire circuit’s judges) would control OSHA’s ability to implement the regulation. Regardless of the outcome, the case is sure to be appealed to the U.S. Supreme Court. Unless these appeals are considered on an extremely fast-tracked basis, the process will likely take at least a few months to sort out. At this point, employers should still consider possible implementation steps in the event that the rule survives judicial review.

The Fifth Circuit’s stay of OSHA’s ETS has no impact on the new Centers for Medicare and Medicaid Services (CMS) interim final rule for health care workers (discussed below) or executive order 14042 regarding mandatory vaccinations for federal contractors, therefore employers who fall under those rules must still comply with vaccination mandates, unless separate legal challenges to those requirements prevail.

What About the CMS Rule for Health Care Employers?

The CMS rule, though not implicated in the Fifth Circuit’s order, is now also facing a legal challenge by 10 states (Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming) filed on November 10 in the United States District Court for the Eastern District of Missouri. Twelve other states (Alabama, Arizona, Georgia, Idaho, Indiana, Louisiana, Mississippi, Montana, Oklahoma, South Carolina, Utah, and West Virginia) filed suit on November 15 in the United States District Court for the Western District of Louisiana. These lawsuits have not yet been ruled on, which means the CMS rule remains in effect and employers should continue planning for compliance with the CMS rule’s vaccination requirements.

Parker Poe will continue to monitor both of these lawsuits – and any new legal challenges related to vaccination requirements – and will update its guidance as more information becomes available.