Federal court reinstates employer vaccine mandate
Late on Friday, December 17, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued an order, which allows President Biden’s COVID-19 vaccine mandate to move forward. It is important to note however that the Court’s decision is not final and is now pending before the Supreme Court. Dozens of business groups, state’s Attorney Generals, and religious organizations have already asked the Supreme Court for a new emergency stay, as it is unclear when or if the Supreme Court will act.
The Court’s 2-1 decision overrules a previous decision by a federal judge from a separate court that had paused the mandate nationwide since November 6.
What to know now:
- The mandate – or Emergency Temporary Standard (ETS) – requires covered employers with 100 or more employees to require their employees to be fully vaccinated against COVID-19 or wear approved protective face coverings in the workplace and take weekly COVID-19-tests at the employee’s expense. Two similar mandates for healthcare and federal contractors are still tied up in court.
- Covered employers with 100 or more employees should begin to prepare a policy to implement the vaccination/testing rule pending Supreme Court action.
- 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 rule.
- However, as a reminder, because North Carolina has a State OSHA plan, the NC Department of Labor (ND DOL) has 30 days to either adopt the federal plan or come up with a state plan equal to or stronger than the federal plan, which buys NC employers more time. As our team remains engaged with NC DOL, they have told us that they will not take any action until the Supreme Court’s reaches a final decision. Under federal rules, NC DOL will announce a decision within 15 days whether to enforce the ETS or come up with a state plan – both of which would go into effect in 30 days. Again, these deadlines will only stand if the Supreme Court does not get involved in the case.
- Refer to our COVID Resource Guide for timely resources regarding the ETS. Among these resources is OSHA’s FAQ on the ETS, which gives a comprehensive list of possible employer questions and answers.
- NC Chamber members may contact Government Affairs Director Peter Daniel (firstname.lastname@example.org) if you have specific questions about the ETS.