Time to take action! The Sixth Circuit reinstates the OSHA Emergency Temporary Standard mandating employees be vaccinated or tested weekly

Late Friday, Dec. 17, 2021, a three-judge panel of the Sixth Circuit Court of Appeals lifted the stay of the OSHA Emergency Temporary Standard (ETS). OSHA promptly issued this statement (opens a new window) extending enforcement deadlines:

Litigation update:

“OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To 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.”

What does this mean for covered employers?

The initial compliance date for all covered employers with 100 or more employees is now Jan. 10, 2022. If an employer opts to allow for testing of unvaccinated employees, that deadline is extended to Feb. 9, 2022. At this point, employers covered by the OSHA ETS should take the following steps:

  • Establish a compliant policy on vaccination and/or testing (see templates available here (opens a new window))

  • Determine the vaccination status of employees, obtain proof of vaccination, maintain records and roster of vaccination status

  • Support employees in efforts to be vaccinated (paid time off)

  • Require employees to provide prompt notice of a positive COVID-19 test or diagnosis and remove those employees from the workplace

  • Require employees who are not fully vaccinated to wear face coverings when indoors or inside a vehicle with a co-worker

  • Provide employees with information about the ETS

  • Report work-related COVID-19 fatalities and in-patient hospitalizations

  • Make records available to employees and OSHA as required

Lockton comment: The extended deadlines afford covered employers three weeks to meet the initial ETS compliance date. If you have questions regarding the ETS, see our detailed FAQs here (opens a new window) or watch our Nov. 10 webcast replay (opens a new window).

Since OSHA published the ETS on Nov. 5, many states and localities have enacted laws impacting vaccine mandates. For instance, employers in New York City are no longer faced with deciding whether to mandate the vaccine or permit testing as a vaccine mandate is effective Dec. 27, 2021. In states or localities with a vaccine mandate, covered employers need to abide by the stricter standard and do not have the testing alternative available as an option.

On the opposite side of the spectrum, other states have enacted laws impacting an employer’s ability to mandate the COVID-19 vaccine. The OSHA ETS makes its position clear that these standards take precedence over any conflicting state or local law stating “… OSHA intends for the ETS to preempt and invalidate any State or local requirements that ban or limit an employer’s authority to require vaccination, face covering, or testing.” (Emphasis added)

Lockton comment: Employers operating in multiple states across the country will need to ensure compliance with applicable state and local vaccine mandates as well as compliance with the Federal OSHA ETS. Those operating in State Plan states will also need to comply with the standards implemented in those states once identified. Conflicting state and local laws have yet to be challenged in courts. Employers should seek guidance from legal counsel to address questions related to these conflicts.

Is the legal battle over?

At this point, the battle seems far from over. The legal challenges to the OSHA ETS continue. Several parties to the Sixth Circuit lawsuit promptly filed emergency applications with the United States Supreme Court for an immediate stay of the ETS. These applications will be reviewed by Justice Brett Kavanaugh, who is assigned to hear petitions from the Sixth Circuit. Justice Kavanaugh has several options:

  • Grant the emergency applications and stay the ETS pending review by the Supreme Court

  • Refer the emergency applications to the full Court for review

  • Take no action and await review by the full Court

As these issues evolve, we will keep you updated. Note that this decision on the OSHA ETS does not impact the nationwide stay of the federal contractor vaccine mandate or the partial stay of the CMS vaccine mandate. Updated information on the CMS vaccine mandate can be found here (opens a new window).

Download alert (opens a new window)Not legal advice: Nothing in this alert should be construed as legal advice. Lockton may not be considered your legal counsel, and communications with Lockton's HR Compliance Consulting group are not privileged under the attorney-client privilege.

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