Last Thursday, the Biden Administration unveiled its OSHA Emergency Temporary Standard – a detailed set of rules requiring mandatory vaccination, or mask-wearing with weekly COVID tests, for employees of companies with 100 or more workers. The rule took effect Friday. On Saturday, the United States Fifth Circuit Court of Appeals issued a temporary restraining order (TRO) blocking implementation of the mandate nationwide pending a closer look by the Court.
Normally, TROs last no more than fourteen days. In that window, the administration will have the opportunity to file briefs arguing to lift the order, and the Court will likely schedule a hearing at which the litigating parties can argue their cases. After that, the Court will either grant or deny a preliminary injunction. If it grants an injunction, implementation of the OSHA Standard could be delayed indefinitely while the legal dispute works its way through the system. However, given the high stakes involved, it seems likely that whichever party loses on the injunction issue will ask the United States Supreme Court to intervene.
In the meantime, potentially impacted employers should take time to study the standard, keeping in mind that the TRO could be lifted at any minute. If that happens, the mandate and the numerous rules surrounding it will be back on track unless and until another federal appellate court … or the U.S. Supreme Court … steps in.