OSHA’s COVID-19 Vaccination and Testing Mandate for Certain Private Employers is Back in Effect

On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit issued an Order that dissolved the stay issued by the U.S. Court of Appeals for the Fifth Circuit on the Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”).  As we previously reported, the ETS requires all employers with a total of 100 or more employees to develop, implement, and enforce a mandatory COVID-19 vaccination policy or choose to subject unvaccinated employees to weekly COVID-19 testing and indoor masking requirements.

Shortly after the Sixth Circuit entered the Order, OSHA announced that it will begin to implement the ETS and “[t]o account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”  Therefore, until any further court order, covered employers now have until January 10, 2022 to comply with all provisions of the ETS, except for the weekly testing requirements that will not be enforced until February 9, 2022.

As we previously reported, OSHA released the ETS on November 5, 2021 and the Fifth Circuit issued an order one day later staying the ETS pending expedited judicial review.  Subsequently, on November 12, 2021, the Fifth Circuit affirmed its original November 6, 2021 order, which left the emergency stay in place pending further review of the petitioners’ underlying motions for a permanent injunction.  Within the November 12, 2021 Order, the Fifth Circuit set forth multiple reasons why the ETS was likely to be struck down.  In response to the Fifth Circuit’s decision, OSHA announced that it would not take steps to implement or enforce the ETS until further court order permitting OSHA to do so.

Due to the filing of multiple legal challenges to the ETS across the country, on November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation selected the Sixth Circuit via a lottery system to ultimately decide whether to continue, modify, or lift the Fifth Circuit’s stay.  In a 2-1 decision, the Sixth Circuit’s Order dissolved the Fifth Circuit’s stay and made the following significant conclusions:

• Finding that OSHA has emergency standard statutory authority to implement nationwide vaccine or testing requirements.
• Finding that adequate evidence, such as the spread of the Delta variant and the FDA approval of several COVID-19 vaccines, supports that the ETS addresses a “true emergency” and that OSHA enacted the ETS in a reasonable manner.
• Finding that OSHA does not need to demonstrate potential COVID-19 exposure in all workplaces to prove that COVID-19 is a “grave danger” and, can instead, rely upon public health data regarding the negative effect COVID-19 has on workers and the public at large to prove that COVID-19 is a “grave danger” to all workplaces.
• Rejecting the notion that the ETS violates the U.S. Constitution and that such vaccine or testing requirements can only be implemented through state law.
• Finding that the petitioners could not show the requisite irreparable harm for the stay because the ETS allows employers to adopt a weekly testing option for all workers who do not want to get vaccinated.
• Finding that delaying the implementation of the ETS places workers and the public at large at further risk by failing to fight against the spread of COVID-19 throughout the country.

To date, several petitioners have already filed emergency applications with the U.S. Supreme Court to stay the Sixth Circuit’s Order and to reinstate the Fifth Circuit’s stay until full judicial review of the case can be completed by the U.S. Supreme Court.

As always, employers should continue to stay up-to-date with any new legal developments.  Employers with 100 or more employees should speak with employment counsel to prepare to comply with the ETS.  Additionally, New York City employers should also speak with counsel regarding the interplay between the ETS and the newly enacted New York City COVID-19 vaccine mandate, which goes into effect on December 27, 2021, that we recently blogged about here.