Editor’s note: NACDS president and chief executive officer Steven Anderson issued the following memo to NACDS members on The Biden Administration’s effort to “to protect unvaccinated employees from the risks of COVID-19” in the workplace through vaccination and testing requirements.

The Biden Administration’s effort to “to protect unvaccinated employees from the risks of COVID-19” in the workplace through vaccination and testing requirements, as announced in their COVID Action Plan from September, is underway. As of this weekend, wasting no time, legal challenges have also commenced. We recognize these developments have potential business implications for NACDS members, both chains and associates. NACDS is committed to providing timely updates and information on this important issue.

About the Vaccination and Testing Requirements

Effective November 5, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) released an Emergency Temporary Standard (ETS), which applies to employers, a single corporate entity, with 100 employees or more. The ETS directs requirements of full COVID vaccination for employees, or required testing and masking, in addition to related paid leave requirements. The ETS will remain in effect for at least 6 months, depending on possible refinements based on a 60-day public comment period.

The key deadlines to be aware of are December 5, 2021 and January 4, 2022. By December 5, unvaccinated employee masking is required, in addition to paid leave requirements being satisfied. By January 4, 2022, employers are required to ensure that workers have their final vaccination dose, boosters not included, or are otherwise doing weekly testing. Under the ETS, pharmacy records can serve as proof of vaccination for employees, and pharmacists can proctor self-administered tests. The ETS may increase demand for vaccines at pharmacies.

To learn more about the ETS, read NACDS’ summary.

To learn more about our advocacy on behalf of the industry when the Administration released its COVID Action Plan in September, see NACDS’ comment letter.

About the Legal Challenges

Over the weekend, a federal appellate court issued a temporary restraining order (TRO) to stay the new ETS rules, temporarily halting further government implementation of them. The TRO, for reference, is available here. The plaintiffs, employers subject to the new rule, as well as religious organizations and some states, argued that OSHA exceeded its legal authority in issuing the ETS rules. Among the legal claims made by plaintiffs were that OSHA can only regulate workplace-related hazards, not those society-wide; that COVID-19 does not pose a “grave danger” to all workers; and that the rules were overly broad.

The 5th Circuit Court of Appeals issued the TRO concluding that plaintiffs raised “grave statutory and constitutional issues”. The government is expected to file its opposition today, Monday, November 8, with plaintiffs’ reply brief due Tuesday, November 9, likely with a hearing to follow immediately after.?Once all briefing and oral arguments are concluded, the Fifth Circuit will decide on whether to permanently enjoin the ETS rules. Notably, this is not the only legal challenge pending, with reports that at least four separate lawsuits have been filed in multiple federal circuit courts.

Practically speaking, with the implementation dates not until next month and January for this rule, the Fifth Circuit’s TRO will not be too impactful on the government conduct, except maybe delaying internal activity. Until the court makes a determination to permanently halt the ETS, employers will likely continue to plan for compliance.

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