Just after OSHA issued their updated ETS earlier this month, on November 12, 2021, the United States Court of Appeals for the Fifth Circuit blocked the implementation of OSHA’s updated ETS which would require employers with 100 or more employees to implement a mandatory Covid-19 or weekly testing for employees (“Mandate”). The Court ordered that OSHA “take no steps to implement or enforce“ the ETS “until further court order”. (OSHA.gov)
The Fifth Circuit Court’s initial order was a temporary block of the Mandate. Then this past Friday, the Court issued a decision that the implementation of the Mandate was permanently halted for the time being due to the belief the Petition is fatally flawed (even if it were to pass constitutional muster) due to the ETS’ failure to account for the differences and risk in various industries – i.e. it was under inclusive and over inclusive in its reach. In addition, numerous petitions were filed by other states (not including California) which gave the Court cause to believe that there are statutory (not just constitutional) issues including that the Mandate exceeds the federal government’s authority under the Commerce Clause and also violates the separation of powers principles. Now that a permanent injunction has been issued this means that the implementation of the Mandate will be halted until there is a final decision on the matter- which could take months or longer.
While the permanent injunction may give employers with more than 100 employees some additional time to decide how to address the Mandate, it is critical you have proper policies in place on testing, and vaccination requirements – what is it that your company is doing to ensure workplace safety? This is applicable to those businesses with 99 or fewer employees. The delay of implementing Biden’s mandate does not eliminate an Employer’s obligation to address Covid-19 in the workplace.
Employers should stay up to date on OSHA requirements and even Cal-OSHA requirements surrounding vaccination and testing requirements. Additionally, all Employers can still choose to voluntarily implement Vaccine and testing requirements in the workplace, or both. Whatever you choose to do, California Employers need to comply with Cal-OSHA requirements, which includes a written Covid-19 Prevention Plan. The attorneys at Chauvel & Glatt can help you navigate this ever-changing area of law as it relates to your workplace. To learn more about this Mandate, if you are impacted, or to learn about specific Cal-OSHA requirements that impact your business, contact the the Employer Lawyers at Chauvel & Glatt to assist you in this process.
The material in this article, provided by Chauvel & Glatt, is designed to provide informative and current information as of the date of the post. It should not be considered, nor is it intended to constitute, legal advice or promise similar outcomes. For information on your particular circumstances, please contact Chauvel & Glatt at 650-573-9500. (photo credit: 123rf.com)
