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Whether OSHA’s ETS will withstand the expected legal challenges remains to be seen. But while the outcome of those legal challenges may impact the federal government’s ability to force vaccine mandates on businesses, the outcome of those challenges should not impact the legality of a business’ voluntary decision to impose vaccine mandates or testing on employees. (Credit: Leigh Prather/Adobe Stock) Whether OSHA’s ETS will withstand the expected legal challenges remains to be seen. But while the outcome of those legal challenges may impact the federal government’s ability to force vaccine mandates on businesses, the outcome of those challenges should not impact the legality of a business’ voluntary decision to impose vaccine mandates or testing on employees. (Credit: Leigh Prather/Adobe Stock)

On October 12, nearly a month after President Biden directed the Occupational Safety and Health Administration (OSHA) to issue a rule mandating COVID-19 vaccinations or weekly testing for all private sector businesses with 100 or more employees, OSHA finally submitted an emergency temporary standard (ETS) to the White House’s Office of Information and Regulatory Affairs (OIRA) for review. The ETS has not yet been made available to the public and OIRA’s review process could take days, weeks or months. But once the ETS is finalized and published by the Federal Register (the federal entity responsible for publishing federal government rules and regulations), the ETS could take effect immediately.

As reported in various media outlets, several businesses have decided not to wait for the ETS to be finalized and are already taking steps to mandate employee vaccinations or weekly testing. Some states have imposed bans on COVID-19 vaccine mandates, although legal challenges to those bans are expected. According to federal government agencies and recent court rulings, however, vaccine mandates are legal, subject to exceptions for employees who object due to certain disabilities and religious beliefs. Earlier this year, the U.S. Equal Employment Opportunity Commission and Department of Justice both officially took the position that vaccine mandates — even for those vaccines which are authorized for emergency use only — are legal and can be imposed by employers.

 

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