Employers have been struggling with whether or not to require vaccines for employees for the last five months. Now the fight for and against vaccine passports has Florida companies, in particular, those in the hospitality and travel industries, in a whirlwind battle with the Florida government. During the presentation for the Association of Corporate Counsel South Florida, Hattaway discussed whether businesses can require employees and customers to provide proof of vaccination, and the ramifications of imposing (and not imposing) such restrictions.

During the presentation, he discussed the Fifth Circuit’s Order staying enforcement of the OSHA Emergency Temporary Standard.  As of November 18, OSHA has announced that it is suspending implementation of the ETS until litigation is resolved.  Specifically, OSHA stated “The court ordered that OSHA ‘take no steps to implement or enforce’ the ETS ‘until further court order.’ While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”  Here is a link to the Fifth District’s order:  https://www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf.

While the OSHA ETS is currently suspended, OSHA could revise the regulation and/or announce enforcement in the future.  Additionally, while the ETS currently applies to employers with 100 employees or more, OSHA previously indicated that it was considering lowering the threshold.  In light of these issues, employers should stay up-to-date on the OSHA ETS, as well as the Florida legislation, which we expect to be signed this week.