On December 17, 2021, the Sixth Circuit Court of Appeals dissolved the previously-issued stay on the Occupational Safety and Health Administration’s (OSHA) vaccine or testing requirement for private employers with at least 100 employees.
OSHA originally instituted the requirement through an Emergency Temporary Standard (ETS) on November 5, 2021. You can learn about the ETS when we first wrote about it here. However, the ETS was quickly challenged and stayed by the Fifth Circuit Court of Appeals on November 6, 2021. The Fifth Circuit found several problems with the ETS, noting that it was overly inclusive and failed a cost-benefit analysis. Under the ETS’ original provision, the testing or vaccine requirement was to go into effect on December 6, 2021.
Because multiple challenges to the ETS were filed in different circuit courts of appeals, the case was reassigned to the Sixth Circuit in a lottery-based system. On November 16, 2021, the U.S. Judicial Panel on Multidistrict Litigation held a random lottery to choose which appeals court would address the issue. As a result of the lottery, the case was sent to the Sixth Circuit.
Following the Sixth Circuit’s 2-1 decision to lift the stay, OSHA quickly announced that, to give employers time to comply, it will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022 and it will not issue citations for noncompliance with the ETS’s testing requirements before February 9, 2022, as long as an employer is exercising “reasonable, good faith efforts to come into compliance” with the ETS.
In lifting the stay, the Sixth Circuit noted that over 800,000 Americans have lost their lives to COVID-19 and healthcare systems have reached the breaking point.
Because an emergency temporary standard may only remain in place for six months, the DOL has proposed a permanent vaccine or testing standard and is accepting comments on its proposed rule through January 19, 2022.
While the legal battle over the ETS is likely to find its way to the U.S. Supreme Court, employers should make arrangements to comply with the ETS. It is important to note that OSHA has not changed the deadlines in the ETS, which would require amending the standard, but is delaying enforcement.
As a practical matter, this means that (1) by January 10 covered employers must adopt an ETS-compliant policy and start providing the required time off for vaccination and side effects, and (2) by February 9, covered employers must begin testing anyone who is not fully vaccinated (including those who have received exemptions). To be fully vaccinated by February 9, an employee would need to have the second shot by January 26.
Please stay tuned to this important issue as, if we have learned anything in the past two years, things can change on a dime. If you have any questions about implementing the ETS or other COVID-19 employment law issues, please contact your regular Saul Ewing LLP labor and employment attorney.