Skip to main content

What Does the Temporary Halt Mean for OSHA’s COVID-19 Vaccine Mandate?

On November 4, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued its long-awaited guidance mandating that employers with 100 or more employees develop, implement and enforce a mandatory COVID-19 vaccination policy or require weekly testing for unvaccinated employees. However, this guidance was swiftly met with legal challenges seeking to invalidate these new requirements.

The day after OSHA issued the guidance, 27 States and some private businesses filed lawsuits to invalidate the guidance in four of our nation’s 11 Circuit Courts of Appeals. On November 6, the 5th Circuit Court of Appeals issued a ruling temporarily suspending OSHA’s guidance from going into effect. 

To shine a light on how this may unfold with the legal challenges, we sat down with attorney and Capitol Hill insider Chris Condeluci for additional insight. Here’s what he had to say:

Does the block by the court apply to only the states OSHA has jurisdiction?

The temporary halt to the vaccine mandate will apply nationwide, even though the ruling was issued by the 5th Circuit Court of Appeals. This means that – at least as of now – the vaccine mandate will NOT be going into effect on the specified effective dates for employers all around the country.

However, because the 5th Circuit’s ruling is only temporary, there will be future court proceedings (between now and Dec. 5/Jan. 4) which means that future court rulings will determine whether or not this temporary halt will be made permanent – OR – whether the guidance can go into effect as prescribed in OSHA’s guidance.

When could we see a conclusion from the court on whether the mandate will go into effect?

Currently, it’s unclear when these future court proceedings will produce a firm conclusion as to whether and when this vaccine mandate will go into effect. If, for example, the 5th Circuit reconsiders its temporary halt to OSHA’s guidance within the next two weeks, it’s reasonable to suggest that OSHA’s requirements will go into effect on the specified December 5 and January 4 effective dates.

If, however, the 5th Circuit finds OSHA’s guidance to be invalid (e.g., the 5th Circuit invalidates the guidance finding the Biden Administration exceeded its authority in implementing the vaccine mandate through regulations), these new requirements will NOT go into effect as originally proposed. The Supreme Court will be required to step in to ultimately determine the application of OSHA’s guidance, and it’s more likely than not that we won’t see a final ruling from the Supreme Court until after December 5, or even January 4. 

Can employers move forward with their own vaccine mandate?

Yes –  employers may voluntarily adopt their own mandatory vaccine and/or weekly testing/facial covering programs. Nothing in OSHA’s guidance – or in the court rulings – prohibit employers from making their own private business decisions. 

Otherwise, employers with 100 or more employees can continue to take a “wait-and-see” approach with respect to complying with this vaccine mandate. Again, if the courts say that the mandate can move forward, then action must be taken to comply. But, if there is no short-term resolution on the validity of OSHA’s guidance, we wait, unless an employer wants to implement their own programs.

For further clarification on OSHA's guidance, check out this FAQ

Key Considerations for COVID-19 Vaccine Tracking and Mandates in the Workplace

To provide companies insight into key considerations for designing vaccine tracking strategies and mandates, Benefitfocus, in partnership with Feedback Loop, surveyed U.S. employees and employers to identify the points of contention and agreement surrounding COVID-19 vaccine mandates in the workplace. Download the survey to explore the data.


About the Author

Christopher E. Condeluci is principal and sole shareholder of CC Law & Policy, a legal and policy practice that focuses on the Patient Protection and Affordable Care Act (“ACA”) and its impact on stakeholders ranging from employers and third-party administrators to health IT companies and hospital/health systems. Prior to forming CC Law & Policy, Chris served as Tax and Benefits Counsel to the U.S. Senate Finance Committee. During his time in Congress, Chris participated in the development of portions of the ACA, including the Exchanges, the State insurance market reforms and all of the taxes enacted under the law. Based on his experience as an employee benefits attorney, Chris possesses a unique level of expertise on matters relating to tax law, ERISA and the ACA.

Profile Photo of Chris Condeluci