Published on: November 12, 2021
Authors: Gregory Hoff
HR Policy staff were joined by Sarah H. King, Senior VP, Chief People & Diversity Officer, Darden Restaurants, Inc., and William P. Schurgin, Partner at Seyfarth Shaw LLP and member of the new HR Policy Legal Council, to discuss the most significant aspects of the ETS and how it will impact employers, including the pending litigation that is temporarily blocking the rule’s implementation.
Topics covered included:
- Legal challenges to the ETS,
- Which employers and employees are covered,
- Vaccine information recordkeeping,
- Testing issues, and
- Exemptions and accommodations.
The webinar slides can be found here.
HR Policy’s ETS Summary can be found here.
Q&As from the call will be made available here.
Meanwhile, the ETS is facing an increasing number of states pushing back against the private employer vaccine mandate. Alabama Governor Kay Ivey (R) signed into law Senate Bill 9, which attempts to significantly limit the ETS’s impact by placing restrictions on employers’ ability to terminate workers who refuse to comply with vaccine mandates. The law allows for exemptions from vaccine mandates beyond religious and disability exemptions under Title VII and the ADA, including for prior COVID-19 infection, and requires employers to construe employee exemption requests liberally in favor of the employee. Florida, Arkansas, Tennessee, and Iowa are all considering similar pieces of legislation.
This state legislative action is in addition to the numerous pending lawsuits challenging the ETS on statutory and constitutional grounds. The 11th Circuit joined the 5th Circuit in temporarily blocking the ETS in a case filed by Alabama, Florida, and Georgia. It is likely that the many legal challenges will be consolidated into a single case to be decided by a randomly selected federal circuit court in the coming weeks, with the potential for eventual review by the Supreme Court.
Outlook: At this point, any predictions on how the legal challenges to the ETS will play out are purely speculative—at the very least however, it is becoming increasingly possible that the January 4, 2022 compliance deadline may be in jeopardy. HR Policy will continue to keep members up to date on the status of these legal challenges. In the meantime, the Association is engaging with the Biden administration on issues raised by the ETS and will continue to provide compliance resources to Association members.