Vaccine ETS Legal Update

On November 4th, the Occupational Health & Safety Administration (OSHA) under the auspices of the Department of Labor (DOL) released an emergency temporary standard (ETS) on vaccines and testing applying to any company holding federal contracts or having 100 or more employees. At the same time the Centers for Medicare & Medicaid Services (CMMS) also released a separate ETS covering those who work or service healthcare facilities, regardless of company size. As of November 6th, the 5th district court has issued a stay on the rule OSHA rule. This is not necessarily a long-term stay; a lottery will be held to determine with district court will hear the dozens of legal cases already filed. The 5th district is predominantly staffed by Republican appointees, whereas another district with more Democratic appointees may not necessarily feel a stay is needed. Whatever the location of the consolidated cases, it is likely that legal action will move swiftly, as the first deadline (December 5thfor masking for those businesses choosing testing over vaccination) is fast approaching, with full implementation on January 4th, 2022. The CMMS is not currently stayed, meaning that businesses who service health care facilities should prepare to comply. This EMS goes fully into effect on January 4, 2022 but does have an early December deadline for those working in health care facilities to have received their first shot.