LEGAL ADVISORY: Sixth Circuit’s Reversal of Fifth Circuit’s Stay of OSHA ETS December 22, 2021

Sixth Circuit’s Reversal of Fifth Circuit’s Stay of OSHA ETS

by Frank T. George, Esq.

In early November, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS), requiring that businesses with 100 or more employees maintain mandatory COVID-19 vaccination and/or testing policies.

Although enforcement of the ETS was briefly stayed/suspended, the Sixth Circuit Court of Appeals dissolved the stay on December 17, 2021, and OSHA has published a new compliance deadline of January 10, 2022.


More Insight from McCarthy Lebit on the “Vaccine Mandate”

Listen to Employment Litigators Ann-Marie Ahern and Jack Moran from a recent episode of our podcast – The More Report, Podcast Edition – as they discuss the viability of the “vaccine mandate” in the face of probable legal challenges. LISTEN NOW!

Check out Frank George‘s previous legal advisory for more details, highlights, and updates on OSHA’s ETS. READ NOW!

A Brief Recap of Legal Challenges to the ETS

OSHA issued its ETS on November 4, 2021. Almost immediately thereafter, several states and employers challenged its enforceability, and by November 12, the Fifth Circuit Court of Appeals had issued a stay of enforcement and implementation of OSHA’s vaccination/testing mandates.

Because many different parties challenged OSHA’s ETS in many different federal courts, a special judicial panel consolidated the cases and selected one federal appellate court—via a lottery system—to hear them all. The Sixth Circuit Court of Appeals won this lottery on November 16, 2021.

Then, on November 23, 2021, OSHA filed a motion with the Sixth Circuit requesting that it dissolve the stay issued by the Fifth Circuit. And, last Friday, the Sixth Circuit found in OSHA’s favor.

In reaching this conclusion, the Sixth Circuit reasoned that OSHA has the authority to regulate viruses and infectious diseases that create risks in the workplace. It further reasoned that OSHA’s ETS was enforceable, given that the agency stated sufficient justifications to conclude that COVID-19 posed a grave danger to employees.

OSHA’s Newly Published Compliance Deadlines

After the Sixth Circuit’s decision, OSHA published new compliance deadlines on its website.

The ETS generally requires employers to either institute a mandatory vaccination policy or implement weekly COVID-19 testing for unvaccinated employees. As of now, employers who intend to mandate vaccines must comply with the ETS by January 10, 2022, while employers who opt to test unvaccinated employees must comply by February 9, 2022.

It must be noted, however, that multiple parties have already challenged the Sixth Circuit’s decision by filing petitions with the Supreme Court of the United States. It is widely expected that the Supreme Court will take action by January 10, 2022, so as to provide clarity before the ETS’ current compliance deadlines.

Businesses Should Take Action and Prepare to Comply with the ETS

The Supreme Court has not rendered a final decision with respect to the ETS’ enforceability. As it currently stands, though, businesses are required to take near immediate action to comply with OSHA’s vaccination/testing mandates.

Businesses should know that the ETS requires employers to implement a mandatory vaccination policy, unless employers instead enforce a mandatory weekly COVID-19 testing requirement for unvaccinated employees. The ETS also requires businesses to maintain proof of employees’ vaccination status, provide employees paid time to receive the vaccine, implement face-covering policies for unvaccinated workers, and distribute information regarding the ETS to employees.

If your business employs at least 100 employees, McCarthy Lebit encourages you to contact our office for advice and counsel regarding your compliance with these regulations.

Update (12/23/2021): SCOTUS Agrees to Fast Track Legal Challenges to OSHA ETA

The Supreme Court of the United States announced Wednesday evening that it will hear oral arguments in cases appealing the legality of OSHA’s ETS on January 7 — a surprise expedited process that could signal the Court’s intention to act quickly to resolve the legal challenges. For the moment, the OSHA rule (and the subsequent guidance on revised compliance deadlines) remains in effect, as SCOTUS has not made any move to stay the rule, pending its own judicial review. It is not clear whether the Justices will accept any motions to reinstate the Fifth Circuit’s stay of the rule, so employers would be wise to continue making plans for compliance ahead of the January 10 deadline.

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