Supreme Court to Hear Vaccine Mandate Challenge

The U.S. Supreme Court announced it will hear legal challenges on two federal policies Jan. 7, including a vaccine-or-test mandate for workers at large employers.

The Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) in November that requires all employers with more than 100 employees to either ensure all employees are either fully vaccinated against COVID-19 or submit to weekly testing and wear masks at work. The ETS faced many challenges across the country from states, employer groups, and industry associations, including the NAHB, Associated Builders and Contractors (ABC), and the Associated General Contractors of America (AGC).

According to the NAHB, OSHA “has failed to demonstrate that there is a grave danger from exposure to COVID-19 in the construction work environment” and “failed to demonstrate that the ETS is reasonably necessary and appropriate to protect construction workers.”

Shortly after it was published, the U.S. Court of Appeals for the 5th Circuit temporarily put the mandate on hold, but the challenges were consolidated in the U.S. Court of Appeals for the 6th Circuit, which reinstated the ETS in late December.

Following the latest court ruling, OSHA announced it would not issue citations for non-compliance with any requirements of the ETS before Jan. 10 and will not issue citations for non-compliance with the standard’s testing requirements before Feb. 9, as long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

While the NAHB has voiced its opposition to the ETS, the organization advised members to familiarize themselves with the requirements of the ETS and be prepared to handle any outcome from the courts. The NAHB has published guidance with answers to many commonly asked questions to help companies comply with the ETS.

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