Vaccine Mandate Enforcement Suspended

The United States Court of Appeals for the Fifth Circuit has issued a stay preventing OSHA from implementing the emergency temporary standard (ETS) requiring employers with 100 or more employees to either be vaccinated or wear masks and be tested for COVID-19. A series of cases challenging the ETS will be heard by the United States Court of Appeals, which was done by a lottery. OSHA has started the rulemaking process to protect workers from heat hazards, EEOC announced it will be looking at the impact of artificial intelligence, and the Labor Department has finalized the tipped worker rule.

Fifth Circuit Issues Stay Against the OSHA COVID Mandate – The United States Court of Appeals for the Fifth Circuit issued a stay preventing the Occupational Safety and Health Administration (OSHA) from implementing or enforcing the emergency temporary standard (ETS) requiring employers with at least 100 employees to be vaccinated for COVID-19 or take weekly tests and wear masks. The Fifth Circuit found that the ETS “grossly exceeds” OSHA’s statutory authority and also is “staggeringly overbroad.” The Fifth Circuit stated, “the Mandate is a one-size-fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly grave danger the Mandate purports to address.”

The Fifth Circuit noted that in OSHA’s fifty-year history, it has issued only ten emergency temporary standards, with six being challenged in court and only one being upheld. The Fifth Circuit questioned the need for an emergency standard given that President Biden announced on September 9th the imposition of a national vaccine mandate, but it took OSHA almost two months to issue the ETS, and it provides an additional two months before taking effect. The court found the ETS to be both overly inclusive since it applies to employers and employees in all industries and workplaces without taking into consideration the different risks and underinclusive since it doesn’t attempt to protect employees who work for employers with less than 100 employees. The Fifth Circuit stated “an ETS appears to be a poorly-suited approach for protecting workers against [COVID-19] because no standard that covers all of the Nation’s workers would protect all those workers equally.”

The Fifth Circuit questioned in enacting the statute whether Congress intended to give OSHA such broad authority and was concerned with the burden on the “liberty interests of reluctant individual recipients put to a choice between their job(s) and their jab(s).” There are a series of cases challenging the OSHA ETS that have been filed and the United States Court of Appeals for the Sixth Circuit has been chosen by lottery to hear these cases. OSHA announced that it is suspending enforcement of the ETS due to the stay issued by the Fifth Circuit.

OSHA Starts Rulemaking to Protect Workers from Heat Hazards – The Labor Department’s Occupational Safety and Health Administration (OSHA) has published an Advance Notice of Proposed Rulemaking for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. Department of Labor Secretary Marty Walsh stated that “We must act now to address the impacts of extreme heat and to prevent workers from suffering the agony of heat illness or death.” According to OSHA, heat is the leading cause of death among weather-related workplace hazards, and it does not have a standard for hazardous heat conditions.

OSHA wants to protect both indoor and outdoor workers from hazardous heat and stated that as a “first step is seeking additional information about the extent and nature of hazardous heat in the workplace and the nature and effectiveness of interventions and controls used to prevent heat-related illness.” OSHA observed that the three-year average of heat-related deaths among US workers has doubled since the early 1990’s. For a variety of reasons, OSHA believes that heat related deaths, injuries and illnesses are underreported. OSHA noted that currently only four states – California, Minnesota, Oregon, and Washington have hazardous heat standards that require employers in different industries and workplace settings to provide protections to reduce the risk of heat-related illness of employees.

OSHA is seeking input on a variety of issues such as heat-stress thresholds, heat acclimatization planning, and exposure monitoring. OSHA will accept comments on the proposed rulemaking until December 27, 2021.

EEOC Announces AI Initiative – The Equal Employment Opportunity Commission (EEOC) announced that it will be looking at ways to ensure that artificial intelligence (AI) and other emerging tools used for employment decisions comply with federal civil rights laws.  In announcing the initiative, EEOC chair Charlotte Burrows stated that while AI has great potential, “these tools may mask and perpetuate bias or create new discriminatory barriers to jobs.”

As part of the new initiative, the EEOC indicated it will:

  • Establish an internal working group,
  • Launch a series of listening sessions with key stakeholders about algorithmic tools and their employment ramifications,
  • Collect information about the adoption, design, and impact of hiring and other employment-related technologies,
  • Identify promising practices; and
  • Issue technical assistance to provide guidance on algorithmic fairness and the use of AI in employment decisions.

DOL Finalizes Tipped Worker Rule – The US Department of Labor (DOL) issued a final rule that is effective on December 28, 2021 and is designed to set limits on the amount of time that those employees who receive tips can spend performing non-tipped work where the employer receives a tip credit.  According to the DOL, the rule clarifies that an employer can only take the tip credit when employees are doing either work that results in their receiving tips or tasks that directly support the tip producing work if employees do not spend a “substantial amount of time doing tip-supporting work.” The DOL defines substantial amount of time as “more than 20% of the hours worked during the employee’s workweek or a continuous period of time that exceeds 30 minutes.”

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at