SHOT

According to a press release by the National Newspaper Association, the Emergency Temporary Standard by the U.S. Occupational Safety and Health Administration (OSHA) has been stayed by the U.S. Court of Appeals for the Fifth Circuit in New Orleans, which ordered OSHA to stop enforcing the mandate.

The mandate ordered employers both public and private with more than 100 employees to require a COVID-19 vaccine or weekly testing and masking mandates. The ruling affirmed Fifth Circuit’s earlier action to put the mandate on hold, expressing its view that OSHA had exceeded its statutory authority with the mandate. The court stated the constitutional preference for state-level governance on the use of enforcement “police powers” as a reason for its decision.

The order basically turns the issue over to each state. There was no federal requirement for employers of fewer than 100 employees but if there is a state vaccine requirement, it will be the governing law. Each state attorney general will be the authority to check on whether a company is required to do anything.

For employers with more than 100 employees, the federal requirement is suspended. As in the above statement, if there is a state requirement for vaccines, it becomes the governing law.

The option of requiring vaccines, masks, testing and other prevention actions is still in place if the employer so chooses, but there may still be restrictions for some employers due to labor union agreements, individual employee contracts or state laws. About a dozen states prohibit government employers from requiring the vaccines and a few states (such as Montana, New Hampshire and Texas) restrict private employers from issuing such workplace rules.

Several more states are considering restricting employers’ options, including Florida and Oklahoma, where legislation is pending. Many of these state laws are being challenged in court, leaving the situation in flux.

Employers may also wish to consider requests to avoid the vaccine on religious or health grounds to avoid potential discrimination lawsuits.

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