Legal Alert – Federal Appeals Court Stays OSHA Vaccine Mandate Emergency Temporary Standards: Cal/OSHA Poised to Act

On November 4, 2021, the federal Occupational Safety and Health Organization (“OSHA”) issued its long-awaited rule mandating that large employers require employees to either be fully vaccinated or to undergo regular testing for COVID-19.  It was set to go into effect on December 4, 2021.  However, on November 6, 2021, the federal Fifth Circuit Court of Appeals issued a stay citing “grave statutory and constitutional” issues with the Emergency Temporary Standards (“ETS”).  While the matter may take some time to wind its way through the federal courts, the question remains – what will Cal/OSHA do?

California has its own state OSHA program, which means that California employers are not subject to the requirements of federal OSHA or the new vaccine mandate ETS.  However, as a state-authorized program, Cal/OSHA is required to adopt standards at least as effective as those issued in a federal OSHA ETS within thirty (30) days of publication of the ETS.  Under normal circumstances, that would mean Cal/OSHA has until December 4, 2021 to conform its rules to the federal ETS.  Given Cal/OSHA’s prior actions, Cal/OSHA may move forward with incorporating a vaccine mandate regardless of the federal stay.  Cal/OSHA’s next regularly scheduled meeting is November 18, 2021.  Outlined in the attached Alert is a summary of the now stayed federal OSHA ETS, which may ultimately be a preview for what to expect from Cal/OSHA in the coming weeks.  Please contact an attorney in our Employment Group with any questions.

Federal Appeals Court Stays OSHA Vaccine Mandate Emergency Temporary Standards: Cal/OSHA Poised to Act