UPDATE: The 34 challenges to OSHA’s rule have been consolidated into the conservative leaning 6th District Court of Appeals in Ohio. Meanwhile, OSHA is no longer contacting large employers to help them comply with the rule and are waiting for the court to make a decision, CNN reports.
It didn’t take long for labor unions to respond to the federal vaccine mandate. Just a few days after the OSHA announced the mandate, a federal appeals court issued a stay of the rule, meaning the guideline requiring vaccination or weekly testing for employers with more than 100 people is on hold.
The fifth circuit of appeals issued the stay, though it is just one of many where the rule is being appealed. OSHA’s Emergency Temporary Standard is now being challenged in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh, and D.C. Circuit Courts. So what does that mean for employers in North Texas?
As of now, the deadlines for a COVID-19 roster and eventual testing and vaccines are not in effect, but the cases will most likely be consolidated into multi-circuit litigation. This is where it gets interesting. Federal rules say a panel chosen by the supreme court will conduct a lottery on Tuesday to select which U.S. Circuit Court of Appeals will hear the consolidated litigation, with each court that has an appeal getting one entry for the drawing. Given the massive impact of the ruling, the Supreme Court could accept the case on appeal from the district court ruling. So we may be a long way off from the final word, but that doesn’t mean employers should sit this one out.
Some circuits are considered more liberal than others, so that may impact the ruling on the consolidated litigation. Polsinelli employment lawyer Jason Weber says that the ruling could happen before Thanksgiving and that business leaders need to know what to do in the interim.
Weber’s advice is to continue preparing for the implementation of the rule. “These are not policy changes that you can implement overnight. There’s a lot of labor that goes into creating these policies, getting the verification that you need, and prepping for compliance. If you want to get ahead of this and not get caught flat-footed, you need to start taking measures even though it may not go into effect.”
That means working on a policy that complies with the rule and working toward getting a roster of whether employees are vaccinated. Weber also sees a way companies can thread the needle between the conflicting executive order in Texas, which bans mandator vaccines, and the federal rule, which requires them. If an employer offers testing as an alternative to getting vaccinated, they are technically not mandating a vaccine. This would also comply with the federal rule, should it go into effect. “That’s been tested in the courts, so we don’t know for certain, but I think that you could interpret it that way,” Weber says.
Weber says he has clients taking a variety of approaches, though most have continued full steam ahead, assuming that the OSHA will rule will hold up because of the threat of the virus. Some companies want to implement this sort of plan anyways, so having a federal mandate gives them cover in the eyes of their employees.
By now, human resources leaders are used to being on their toes and reacting to shifting federal, state, and county guidelines connected to the pandemic. However, fatigue is still a factor, and no one wants to go all-in on a policy they will have to repeal in a few weeks. For that reason, many companies are taking a wait-and-see approach while preparing behind the scenes.
“You don’t want to get caught flat-footed with this,” Weber says. “You still want to start taking measures to prepare for this or at least thinking through the approach that you’re going to take and the policy that you’d be implementing.”