Update on OSHA’s COVID-19 “Emergency Temporary Standard” for Businesses with 100 or More Employees

Date: December 02, 2021

A stay on the mandate was granted and NFIB’s lawsuit was consolidated with similar lawsuits

In September, President Biden announced his administration would require employers with 100 or more employees to impose COVID-19 vaccination or testing requirements. On November 4, the Occupational Safety and Health Administration (OSHA) released an emergency temporary standard (ETS) detailing the President’s vaccine mandate.  

On November 9, NFIB filed a legal challenge against the ETS before the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit has granted a stay on the ETS, meaning businesses do not have to comply with the ETS until the courts lift the stay or the courts rule on whether the ETS is legal. 

Many other organizations have also challenged the ETS in court and on November 16, NFIB’s legal challenge was consolidated with other challenges and moved to the U.S. Court of Appeals for the Sixth Circuit. NFIB will continue to fight the mandate in the Sixth Circuit. 

In the meantime, OSHA has requested public comments on the rule, including whether the mandate should be extended to all businesses regardless of size. They also ask whether all businesses should impose a mask mandate on employees, regardless of vaccination status. NFIB encourages small business owners to take this opportunity to make their voices heard and comment on this important rule via Regulations.gov. The deadline to submit comments is January 19. 

In Congress, resolutions have been introduced in both the House and Senate to overturn the ETS. U.S. Sen. Mike Braun and U.S. Rep. Fred Keller have introduced Congressional Review Act (CRA) resolutions, which are the official process Congress can use to overturn executive branch rules like the ETS. The U.S. Senate could vote on its CRA resolution soon. To urge your members of Congress to vote with small business and stop the ETS, click here to send them a message explaining how the ETS would impact your business



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