COVID-19 Vaccine Mandate- Update

As of December 6, there are a couple of updates to the issue of a mandated vaccine.

OSHA Emergency Temporary Standard On Hold

As we have previously reported, enforcement of the OSHA Emergency Temporary Standard (“ETS”) was stayed by the Fifth Circuit Court of Appeals, and all petitions challenging the ETS have now been consolidated before the Sixth Circuit. OSHA had filed a motion seeking expedited review of the stay. The Sixth Circuit denied that motion on December 3, and OSHA has not sought intervention by the Supreme Court. As it now stands, final briefs will not be filed in the case until December 10. The court also has not yet decided if the challenge will be heard by a yet to be selected three-judge panel, or as requested by multiple petitioners, the entire Sixth Circuit sitting as a single panel. The court also declined to set a schedule for briefing on the merits of the challenges, as well as denying the requests to transfer the case to another circuit.

OSHA Extends Comment Period for ETS

On Thursday, December 2, OSHA extended the public comment period on the ETS to January 19, 2022. Any comments can be posted at https://www.regulations.gov/.

New York City Mandatory Vaccination Order

This morning, December 6, outgoing New York City mayor Bill de Blasio announced that effective December 27, all private employers (one or more employees) must require their employees to be vaccinated. The order will not be published until December 15, and is certain to draw legal challenge. The effective date of the mandate is a few days before Eric Adams will assume the role of mayor. Mr. Adams has not indicated that he will either support, or decline to enforce, the new mandate.

Previous Updates:

Status of OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (November 18, 2021)

Challenge to OSHA Emergency Rule to Be Heard by Sixth Circuit (November 16, 2021)

OSHA Files Response to Stay of the Emergency Temporary Standard (November 9, 2021)

OSHA COVID-19 Emergency Temporary Standard- New Litigation Filed (November 8, 2021)

OSHA COVID-19 Emergency Temporary Standard- Litigation Update (November 7, 2021)

Fifth Circuit Court of Appeals in New Orleans Issues Stay of OSHA’s Emergency Temporary Standard (November 6, 2021)

Employers with questions related to COVID-19 and the workplace following the ETS, or other questions related to employment law, should contact Philip Toomey.

Philip Toomey is Chair of the firm’s national Employment & Labor Practice Group, where he also leads the Public Sector Employment Group. He can be reached at 424.738.4400 or ptoomey@leechtishman.com.