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In early November, the Biden administration released a requirement that all employers with 100 or more+ employees require them to be vaccinated or test weekly. Almost immediately, the rule was challenged in court, leading to conflicting information. Here’s what we know going into the final days of the year.  

Timeline 

• November 4: OSHA releases “Vax or Test” rule. 
• November 12: U.S. Court of Appeals’ 5th Circuit stays rule, citing questions about constitutionality. Because of this, OSHA was prohibited from enforcing the mandate.  
• December 17: Court of Appeals’ 6th Circuit lifts the 5th Circuit’s stay, meaning OSHA can again enforce the rule.  
• December 30: Supreme Court Justice Brett Kavanaugh will hear petitions asking the Supreme Court to overrule the circuit courts. Petitions are due on the 30th, and the Supreme Court will likely review the rule after, according to the National Law Review. 
• January 10: OSHA plans to begin issuing citations for violations of the rule on this date. This can change if the Supreme Court tosses the rule out.   

Local Considerations 

Both Erie County and New York State have issued indoor mask mandates, with exceptions allowed at venues that require proof of vaccination for entry. Employers should be mindful of these local/state rules when planning vaccination policy. 

What Should Employers Do? 

Keep preparing. Absent Supreme Court intervention, this rule will go into effect on January 10th. Employers should be prepared to implement this if the rule applies to them.  

To help you prepare, the BNP hosted a seminar with a human resources expert. The presentation, available here, will address frequently asked questions.  

Stay tuned for BNP updates on SCOTUS. Supreme Court action will determine whether OSHA will be enforcing this rule. As Justice Kavanaugh and the Court consider petitions, the BNP will keep you informed of any updates that affect its enforceability.