The Occupational Safety and Health Administration announced that it has “suspended its activities related to the implementation and enforcement of the ETS [Emergency Temporary Standard] pending future development in the litigation.” This announcement comes after the U.S. Court of Appeals for the Fifth Circuit upheld the stay to the implementation of the ETS. The Court stated that the mandate as presented was “fatally flawed.” Despite this decision, the White House has maintained that they are on firm legal ground. In other words, the ETS requiring employers to implement a vaccine mandate policy or a vaccine mandate policy with a testing option, is on hold for the time being. Given this hold, we will not see the issuance of any fines for non-compliance while the stay is in place.
How should employers covered by the ETS respond to this uncertainty? As expressed in our previous post, the penalties for non-compliance could range between $13,653 and $136,532 so it may be wise to continue to prepare comply with the ETS in the event this stay is lifted or the ETS is ultimately upheld.
Of course, employers can move forward with a policy on its own without the mandate in place. It can always be revised, if necessary, in order to comply with any changes in the ETS.