A three-judge panel on the Fifth Circuit Court of Appeals has now permanently blocked OSHA from implementing and enforcing its vaccine rule, which impacts employers nationwide.
This is not the end of the judicial review road for the vaccine rule. Challenges to the rule were filed in multiple federal circuit courts across the country. When there are multiple filings like these, a multi-circuit “lottery” system is utilized for purposes of consolidation and clarity. All of the appeals are consolidated before the circuit court selected in the blind lottery, which will then hear the challenge to the rule. That lottery is expected to take place on or about Monday, November 16th.
If the Fifth Circuit is not selected in the lottery, then another appeals court will have an opportunity to issue the controlling decision here (which could, among other things, lift the Fifth Circuit’s stay). After that, regardless of the outcome, the Supreme Court will likely have the final word.
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OSHA’s COVID-19 Vaccination Rule
UPDATE: A federal appeals court (the Fifth Circuit Court of Appeals) permanently blocked OSHA’s vaccine rule on November 12, 2021, citing to “serious constitutional concerns” with the rule. This is not the end of the judicial review road for the vaccine rule (as described here), and the Supreme Court will likely have the final word. We also, of course, will be closely monitoring this legal development, which impacts employers nationwide. Although the future of the OSHA vaccine rule is unknown at this time, employers should continue to take steps to come into compliance given the short compliance window provided by OSHA if the rule is upheld.
The Federal Occupational Health and Safety Administration (OSHA) has released its long-awaited Emergency Temporary Standard (ETS) pertaining to workplace COVID-19 vaccination and testing requirements for employers with 100 or more employees. The new rule – which is expected to cover 84 million American workers or 2/3rds of the private American workforce – is sweeping in its scope. It will also require covered employers to take several steps within the next two months to come into compliance.
At its core, the new rule requires covered employers to adopt a written policy that implements one of two permissible approaches:
- a mandatory COVID-19 vaccination policy (under which only workers with legally recognized accommodation exemptions may abstain from vaccination); or
- a requirement that employees either become vaccinated or submit to weekly diagnostic testing and required facemask use.
The OSHA ETS goes much further, though: it requires employers to provide paid leave for vaccination and recovery; obtain and retain acceptable documentation of vaccination from employees; maintain records of diagnostic test results where employees are permitted to test instead of vaccinate; and much more.
Read Full Story – Website: A Comprehensive Breakdown of OSHA’s COVID-19 Vaccination Rule | Mintz