COVID vaccination policies — Part 2: OSHA issues final rule for workplace mandates

On Friday, November 5, the Occupational Safety and Health Administration’s final rule concerning mandatory COVID-19 vaccination, testing and face coverings for employers with 100 or more employees became effective. In this video alert, labor and employment lawyers Courtney Bru and Charlie Plumb assist covered employers in understanding what actions they must take now to ensure they are in compliance with the rule by Tuesday, January 4, 2022.

As anticipated, more than 25 states have challenged these regulations in federal courts around the country, and on Saturday, November 6th, the Fifth Circuit Court of Appeals entered an order temporarily staying OSHA’s vaccination regulations. The court’s order applies to employers in Louisiana, Mississippi and Texas. The order is temporary, but a final decision will be issued shortly. We expect the Fifth Circuit’s final decision to be appealed. In the meantime, decisions from other states’ lawsuits contesting the enforceability of OSHA’s vaccination regulations are expected.

While these challenges work their way through the legal system, employers with 100 or more employees should nonetheless decide what their vaccination policy will look like. OSHA’s vaccine regulations have an effective date of January 4, 2022, and it is risky for an employer to bet on whether those requirements will ultimately be upheld or overturned. The regulations require companies to make decisions on the specific type of COVID vaccination policy they intend to adopt. Further, OSHA’s vaccine directive imposes significant administrative duties on employers. If an employer waits until the legal challenges sort themselves out and the regulations are upheld, it may find itself scrambling to meet the January 4th deadline. On the other hand, if OSHA’s vaccine directive is set aside or limited by the courts, an employer that has planned its COVID vaccine policy may simply shelve the program or modify its vaccination policy to meet the final legal ruling.

 This alert is not eligible for continuing education credit (e.g. HRCI, SHRM or CLE).

This information is provided for clients and viewers of McAfee & Taft A Professional Corporation. It does not constitute legal advice, and it is not intended to create a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel.