Several Tennessee business associations joined with other state trade associations in the Sixth Circuit district that includes Kentucky, Michigan and Ohio in challenging a recent Biden Administration OSHA emergency temporary standard. Published on Nov. 5, the OSHA ETS would require most private employers with 100 or more employees to establish either (1) a mandatory vaccination policy requiring that all covered employees be fully vaccinated against COVID-19, or (2) a vaccination policy that requires that employees choose between being fully vaccinated or submit to regular and recurring COVID-19 testing.
The challenge, originally filed in the Court of Appeals for the Fifth Circuit, garnered a stay on implementation of OSHA’s “COVID-19 Vaccination and Testing; Emergency Temporary Standard.” Along with the dozens of other lawsuits filed in circuit courts across the country, the challenge to the ETS was transferred to the Court of Appeals for the Sixth Circuit.
“The mandated vaccine and testing rule will cause a mass exodus of employees in our industries,” said Rob Ikard, president of the Tennessee Grocers & Convenience Store Association. “With our workforce stretched thin and our supply chains already challenged, the ETS, if implemented, will deal a devastating blow to Tennessee’s food industry.”
“The Tennessee Chamber and our member companies believe that increasing vaccination rates are the best way to move forward through this pandemic. Mandating business enforcement through an OSHA ETS, however, is extremely burdensome, costly and confusing, and is not the right solution,” said Bradley Jackson, president of the Tennessee Chamber of Commerce & Industry. He continued, “When the lawsuit challenging this burdensome rule was reassigned to the circuit court with jurisdiction over Tennessee, we felt it was imperative that our state associations add our voices to the chorus opposing its implementation.”
The challenge has been joined by:
• The Tennessee Chamber of Commerce & Industry;
• The Tennessee Grocers & Convenience Store Association;
• The Tennessee Manufacturers Association; and
• The Tennessee Trucking Association.
Other plaintiffs include national business associations as well as business associations from the other states covered by the Sixth Circuit.
The Fifth Circuit’s stay required OSHA to cease implementation of the rule pending further court action. The ETS includes a vaccination compliance deadline of Dec. 5, and a testing commencement date of Jan. 4. Because of the stay, those deadlines are currently suspended.
Dave Huneryager, president of the Tennessee Trucking Association, said, “Our drivers, technicians and operations personnel have worked tirelessly during the pandemic to make sure that food, medicines and fuel have been available to consumers everywhere. While our industry has supported vaccinations, we have very serious concerns about the mandate and the associated testing requirements.”
Regardless of how the Sixth Circuit Court of Appeals rules on the lawsuit, the losing side will almost certainly compel final consideration by the U.S. Supreme Court.
“Our associations’ members are optimistic that the judiciary system ultimately will rule in a balanced manner that does not significantly challenge businesses across this great nation and provides businesses with the ability to make decisions that ensure the health and safety of their customers and employees,” noted all three association presidents in a joint statement.