As we previously reported, on November 5, 2021, the Occupational Safety and Health Administration (OSHA) published a COVID-19 Emergency Temporary Standard (ETS) mandating that employers with 100 or more employees require that those employees either (1) be vaccinated against COVID or (2) produce negative COVID tests on a weekly basis. This is the so-called “vax or test” mandate.
By its terms, the ETS requires compliance with certain mandates by December 6, with the testing mandate kicking in on January 4, 2022. However, numerous legal petitions challenging the ETS have been filed around the country and, on November 12, the U.S. Court of Appeals for the 5th Circuit issued an order formally staying (or, in other words, banning) enforcement of the ETS while the litigation proceeds. In addition, four days later (on November 16), all of the cases challenging the ETS were consolidated in the U.S. Court of Appeals for the 6th Circuit for decision.
Potential Future Timeline
Dealers are undoubtedly interested in how these legal challenges to the ETS will play out, including, in particular, whether and for how long the ban on enforcement will remain in place. At this point, the complex status of these court proceedings makes giving definitive guidance on those questions difficult. However, there have been recent developments that provide some insight into what the future timeline will be.
Specifically, the OSHA filed a motion on November 23 urging the 6th Circuit to lift the 5th Circuit’s order banning enforcement of the ETS. How the court rules on that motion will determine how long enforcement of the rule will be stayed. Final briefs on OSHA’s motion are not due until December 10, and it is anticipated that the 6th Circuit will not rule until after that date. Accordingly, it is expected that at least until the 6th Circuit completes its review of the 5th Circuit’s order sometime after December 10, enforcement of the ETS will remain stayed (halted); this effectively puts the December 6 compliance date on hold for the time being.
For now, NADA recommends that dealers continue to review the requirements in OSHA’s ETS and, in that regard, are directed to the following NADA webinar: OSHA's New COVID-19 Employer Vaccine-or-Test Mandate: A Summary for Franchised Dealerships. Of course, businesses may at any time voluntarily adopt a vaccine and test mandate, so long as they comply with all applicable federal, state and local laws (including anti-discrimination laws). Questions regarding the adoption of a voluntary policy or on whether to continue to prepare for compliance with the ETS should be addressed to your individual counsel. General questions on the ETS or on the 6th Circuit’s deliberations can be directed to email@example.com.