Supreme Court expected to act within coming week on vaccine mandate

Vaccine Mandate Court Updates:

Over the weekend, the 6th Circuit lifted the 5th Circuit’s stay of the U.S. Department of Labor’s Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard, which applies to employers with 100 or more employees. Since the news broke, multiple emergency appeals have already been filed with the U.S. Supreme Court.

Also in related news, the 11th Circuit appeals court ruled to uphold the Georgia court’s nationwide injunction against the federal contractor vaccine mandate.

Please see the below summaries to learn more about last night’s rulings and next steps. Also, read ABC general counsel, Littler Mendelson’s, analysis.

1. OSHA COVID-19 Vaccination and Testing ETS

On Dec. 17, the 6th Circuit lifted the 5th Circuit’s stay of the U.S. Department of Labor’s Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard.

Several emergency appeals have already been filed with Justice Kavanaugh, who will make the initial decision whether to stay the 6th Circuit’s ruling (restoring the stay) pending further review.

In the meantime, OSHA has announced a delayed re-start of the ETS enforcement until Jan. 10, and they will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

It is anticipated that the Supreme Court will issue a decision well in advance of Jan. 10, possibly as early as this coming week, on whether to reinstate the stay pending further review.

Because the stay has been lifted, it is recommended that covered employers do the following:

• Continue to monitor legal developments in Newsline and the Beltway Blueprint.
• Plan for the possibility of a COVID-19 vaccination and testing mandate.
• Review your vaccination and testing policies. If you currently don’t have policies, consider adopting them. Policy templates are available on See OSHA ETS resources, which include fact sheets and FAQs.
• Prepare for logistical challenges of testing.
• Encourage employees to get vaccinated.
• See ABC’s COVID-19 vaccination toolkit.
• Follow all safety protocols as required by court-approved federal, state and local governments.

With the revised Jan. 10 and Feb. 9 deadlines in view, contractors may want to undertake more concrete compliance actions. Each company’s circumstance may vary.

Background:

 On Nov. 12, the U.S. Court of Appeals for the 5th Circuit granted a motion to stay OSHA ETS. Shortly after, OSHA announced that it has suspended activities related to the implementation and enforcement of the ETS, pending future developments in the litigation. On Nov. 16, via lottery, the U.S. Court of Appeals for the 6th Circuit was chosen to hear challenges to the OSHA ETS, which includes ABC’s petition for review filed on Nov. 9. DOL filed a motion to lift the stay. Additionally, on Nov. 30, the agency announced that it was extending the comment period for the OSHA ETS to Jan. 19, 2022, to allow stakeholders additional time to review the ETS and collect information and data necessary for comment. In early January, ABC will circulate a comment letter template for ABC contractor members to submit to the docket.

On Dec. 8, ABC wrote to U.S. senators to express its support of S.J. Res. 29, which would stop the Biden administration’s OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard. ABC will consider the vote as a “KEY VOTE” for its 117th Congressional Scorecard. Read ABC’s letter. The Joint Resolution passed in the Senate by a vote of 52 to 48 on Dec. 8.

2. Federal Contractor COVID-19 Vaccination Mandate:

On Dec. 18, the 11th Circuit kept in place the Georgia court’s nationwide injunction against the federal contractor vaccination mandate. At this time, it is unclear whether the Administration will make its own emergency appeal to the Supreme Court. If they do, ABC will certainly oppose them.

Because the possibility remains that the stay could be lifted without much notice, it is recommended that covered federal contractor employers do the following:

• Continue to monitor legal developments in Newsline and the Beltway Blueprint.
• Plan for the possibility of a COVID-19 vaccination and testing mandate
• Prepare for logistical challenges of testing.
• Encourage employees to get vaccinated.
• See ABC’s COVID-19 vaccination toolkit, resources and guidance for federal contractors to keep workers safe on construction jobsites.
• Follow all safety protocols as required by court-approved federal, state and local governments.

Background:

 On Dec. 7, a Georgia federal judge granted ABC’s motion to intervene and issued a nationwide preliminary injunction order against the federal contractor COVID-19 vaccination mandate. Judge Baker’s decision makes it clear that ABC’s participation in the case was essential to getting nationwide relief, which would otherwise have been limited to the states who sued. This is a big win for ABC, the only private business group that joined the states in suing over this mandate. Read ABC’s press release.

On Dec. 9, the U.S. Department of Justice filed their expected appeal to the 11th Circuit from the preliminary injunction, and the administration has filed a motion for emergency stay of the judge’s ruling pending final review on the merits.