The Occupational Safety and Health Administration (OSHA) has suspended enforcement of President Biden’s COVID-19 vaccination or weekly testing mandate on large private employers.

The president’s directive seeks to require employers with more than 100 employees to ensure their workers are either vaccinated against COVID-19 or tested weekly for the virus by Jan. 4, 2022. The mandate, officially known as the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), does not state whether employers or employees would bear the cost of such testing. The directive does not apply to businesses with fewer than 100 workers.

OSHA’s decision to suspend enforcement was prompted by a Nov. 12, decision by the U.S. Court of Appeals for the Fifth Circuit to grant a motion to stay OSHA’s ETS. The court’s decision ordered OSHA to take no further steps to implement or enforce the ETS unless there is further court direction otherwise. On its website, OSHA states it “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

Though California is outside the jurisdiction of the Fifth Circuit the California Division of Occupational Safety and Health (Cal/OSHA), it is required to adopt occupational safety and health standards that are at least as effective as federal OSHA standards. Therefore, the Fifth Circuit’s decision now makes it uncertain what standards Cal/OSHA can and should adopt, as it relates to large employers mandating COVID-19 testing or vaccinations.

Cal/OSHA was set to meet on Thursday, Nov. 18, to determine how it would implement the mandate in the state but cancelled that meeting considering the recent court order. It is likely that no update on this issue will come from Cal/OSHA until the federal litigation is resolved. Without an end date in sight of such resolution, large employers are left with uncertainty about whether the president’s mandate will be implemented.
CAA will provide updates as this issue unfolds both in and outside the courts.