By Mary P. Snyder
Late in the evening of Fri., Dec. 17, 2021, the Sixth Circuit Court of Appeals lifted the stay of the Occupational Safety and Health Administration's (OSHA) vaccine-or-testing emergency temporary standard (ETS) for private employers with more than 100 employees. As a reminder, the stay was originally put in place by the Fifth Circuit. However, because lawsuits had been filed in multiple jurisdictions, all of the cases were consolidated into one multi-district litigation, and through a lottery process the Sixth Circuit was selected to hear the case. The Sixth Circuit reversed the Fifth Circuit’s decision, handing a major victory to the current administration which for the past month has watched as other vaccine mandates for federal workers, federal contractors and healthcare employees have suffered a string of legal defeats.
Thus, as things stand currently, private businesses with at least 100 employees will be required to comply with the ETS by ensuring that all workers are vaccinated, or implement a fairly strict and expansive mandatory testing and masking protocol. OSHA has already released guidance explaining that covered employers will have until Jan. 10, 2022, to comply with the standard, and that so long as employers are making good faith efforts to come into compliance with the ETS, OSHA will not issue citations for noncompliance with the testing requirements before Feb. 9, 2022.
Of course, the ruling has already been appealed to the U.S. Supreme Court. The Supreme Court has recently upheld vaccine mandates imposed by states. It remains to be seen whether the Supreme Court will view the federal OSHA mandate to be a permissible use of OSHA’s powers.
For now, employers with 100 or more employees should put compliance items related to the OSHA ETS back on their to-do list. This includes polling employees to find out their vaccination status (if not already done), getting proof of vaccinations, drafting a policy along the lines of the samples provided by OSHA at and putting the procedures in place to implement that policy.
If you have questions regarding the OSHA ETS, please contact Mary P. Snyder or another member of the Labor & Employment Practice Group.