By Nicholas Grether, Esq., The Maloney Firm, APC

In November 2021, at the request of the Biden Administration, the federal Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (Federal ETS) requiring large employers with 100 or more employees to mandate vaccination or regular testing for their employees. A temporary injunction blocked the Federal ETS’s requirements before they were scheduled to take effect.

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On January 13, 2022, the U.S. Supreme Court reapplied the temporary injunction blocking enforcement of the Federal ETS. For now, enforcement of the Federal ETS remains “on hold” while the Sixth Circuit Court of Appeals—and potentially the Supreme Court—determine its constitutionality.

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Even if the Sixth Circuit Court of Appeals determines that the Federal ETS is valid in the coming weeks and allows its enforcement, the Federal ETS would likely face subsequent challenges in the Supreme Court. It appears that, for all intents and purposes, the Federal ETS will not take effect.

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While large employers are—for the time being—not required to impose vaccine-or-testing mandates, California employers are still permitted to implement vaccine or vaccine-or-testing mandates. The U.S. Congress and other federal agencies may also make additional rules related to vaccines and testing. We also note that OSHA’s rule requiring vaccination for most healthcare workers was upheld by the Court.

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As a reminder, Cal/OSHA’s updated Emergency Temporary Standards (ETS) for COVID-19 prevention took effect on January 14, 2022. While the ETS is already outdated in light of the CDPH’s recently revised masking and quarantine requirements, continuing adjustments and clarifications to the ETS can be found on Cal/OSHA’s Frequently Asked Questions page. Generally, California employers are subject to the most “protective” health and safety requirements, which may come from state authorities such as Cal/OSHA and the California Department of Public Health (CDPH) and local authorities such as Los Angeles County.

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If you have questions regarding the application of any of the updated COVID-19 prevention recommendations and mandates to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick Maloney, Lisa Von Eschen, Samantha Botros, or Nicholas Grether.

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