Grasso, OSHA’s Vaccine Mandate, Further Judicial Review

Companies can pause preparations for OSHA’s vaccine mandate

Companies scrambling to be ready for OSHA’s Jan. 4 deadline for vaccine mandates can pump the brakes.

Since the Fifth Circuit Court of Appeals extended a temporary stay and ordered further judicial review last week, the Occupational Safety and Health Administration posted on its website that it won’t implement or enforce the emergency temporary standard, issued earlier this month, until the legal challenges are resolved.

“Employers can put a real pause on trying to get ready to implement before that January date,” said Elizabeth McPhail, partner, Hodgson Russ LLP. “It may very likely not withstand judicial scrutiny for many of the reasons — and perhaps others — outlined in the Fifth Circuit decision. It is a wait and see for now.”

The Fifth Circuit Court, representing Texas, Mississippi and Louisiana, ordered Nov. 12, that OSHA take no steps to implement or enforce the mandate. It also ordered further review of an application for a permanent injunction.

Jim Grasso, partner, Phillips Lytle LLP, said the court’s order applies nationwide because it was a federal court of appeals.

“Since it’s a nationwide standard, they have the ability to make the stay apply nationwide,” Grasso said, meaning that Western New York companies also can slow down implementation plans for vaccine mandates or Covid testing.  

“They don’t have to comply with it now, but it’s impossible to foresee what the outcome might be or when that outcome will come about,” Grasso said.

McPhail said it will take time.

“We’ll be into December before we even know who’s going to hear the case,” she said.

Grasso said the court will move at its own pace regardless of OSHA’s original Jan. 4 deadline, which has been stayed. All parties involved in petitioning against the mandate will need to file briefs by mid-December. That could mean plenty of reading material for the court to get through, especially during a holiday season.

Still Grasso said the “prudent advice” is for employers to take precautions and have a contingency plan in case the standard is reinstated.

“If that does happen, at least they won’t be scrambling to become compliant,” he said.

Vaccine mandates are still in place for federal contractors and subcontractors and for any medical provider subject to Medicare and Medicaid regulations, per the Centers for Medicare & Medicaid Services, Grasso said.

McPhail added that employers should continue to encourage employees to be voluntarily vaccinated.

“I would still suggest that it is a good idea for employers to be encouraging voluntary vaccination amongst employees, and of course be sure to comply with any other vaccination requirements,” she said.