California’s Mandatory Directives for Certain Health Care Workers Remain in Place

On November 5, 2021, the federal Occupational Safety and Health Administration (OSHA)issued Emergency Temporary Standards (ETS) implementing the President’s ordered mandatory vaccinate-or-test rules. The ETS directs all employers with 100+ on payroll to require worker vaccination or weekly testing.

Numerous state governments, private employers, and employees immediately challenged the ETS in federal appeals courts around the country.  On November 6, the Fifth Circuit Court of Appeals (covering Texas, Louisiana, and Mississippi) temporarily barred implementation of the ETS pending full judicial review.

The Fifth Circuit extended that prohibition on November 12,  terming the vaccination-or-test mandate a “one-size-fits-all sledgehammer” that : (1) “grossly exceeds OSHA’s statutory authority”; (2) includes both too many workers (same rules regardless of working conditions and actual danger of exposure) and not enough (“grave danger” only for 100+ employees?); (3) is not addressing an “emergency” when the pandemic is nearly two years in; and (4) is unconstitutional.

On November 16, the Sixth Circuit Court of Appeals (Michigan, Ohio, Kentucky and Tennessee) was tasked with the full ETS review for all federal courts.   The Fifth Circuit’s stay remains in effect in the meantime.

OSHA has thus suspended all ETS implementation and enforcement nationwide pending the Sixth Circuit’s decision.

Regardless of status or outcome of the federal rules, the various Cal/OSHA protocols remain in effect on mandatory vaccination for certain health care workers. See, Health Care Workers Must Vaccinate or Regularly Test (July 30, 2021); and Tighten Up – Required Vaccination for Certain Health Care Workers (August 13, 2021).

Take-Aways:  While employers should keep an eye on how this federal challenge plays out, those health care organizations affected should continue to enforce Cal/OSHA’s vaccination-or-test workplace requirements. Consulting with management-side employment counsel on best solutions to meet applicable, ever-changing and sometimes confusing requirements is sound practice.

See also:

• Religion and Mandatory Workplace Vaccination (November 5, 2021)
• Making Mandatory Mandatory – The Coming Vaccination Requirement for Larger Employers (September 10, 2021)
• Easy Does It Take Two; Cal/OSHA Revises Written COVID-19 Prevention Program(July 15, 2021)
• What’s New in 2021 Infection Prevention Direction Cal/OSHA Covid-19 Emergency Temporary Standards (February 5, 2021)

Helena Kobrin
November 19, 2021