On November 5, the Biden Administration published a new rule requiring vaccination or weekly testing plus masking. This rule applies to anyone who works for an employer with 100 or more employees. This new rule was set to go into effect starting December 6. Numerous groups sued immediately, including the Wisconsin Institute for Law & Liberty (WILL). One court, the Fifth Circuit Court of Appeals, issued an order to “stay” the rule’s effective date. This court order is currently in effect, and so as of now (11/17/2021), the new rule is not going into effect on December 6.
In light of the ruling from the Fifth Circuit Court of Appeals, the Occupational Safety and Health Administration (OSHA) suspended the mandate while the case is pending in court.
All of the lawsuits filed nationwide were consolidated and transferred to another federal court of appeals on Tuesday (11/16/2021): the Sixth Circuit Court of Appeals. By law, this court will now consider the case. But until this Court acts to remove or modify the original decision of the Fifth Circuit, the “stay” remains valid and the rule will not go into effect on December 6.
This is, of course, cold comfort for some employers because the rule could go back into effect if the Sixth Circuit says so. Employers, therefore, must make a decision about whether to do nothing and hope the rule does not go into effect or start to make plans for compliance. The legal team at WILL cannot predict what will happen. So, every employer must make decisions for themselves, based on their own risk tolerance.
WCRIS recommends individual schools or systems with 100 or more employees check with their insurance company, their HR team, and their jurisdiction’s central office (Synod or Diocese) to determine next steps.
