19 Dec 6th Circuit Court of Appeals Removes Stay of OSHA Vaccine Mandate
Late on Friday, December 17, a three-judge panel of the U.S. 6th Circuit Court of Appeals issued a split decision removing the stay on OSHA’s Emergency Temporary Standard (ETS) for large employers. The ETS requires covered employees to be vaccinated or wear a protective face covering and test weekly.
The ETS was published in the Federal Register on November 5, 2021, and then immediately challenged in federal court by dozens of states and other plaintiffs. The very next day, a stay was issued on the emergency standard by the U.S. Court of Appeals for the 5th Circuit.
OSHA Statement and Enforcement Deadlines
Soon after Friday’s ruling, OSHA issued the following statement regarding new compliance deadlines: 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.
What This Means for Employers
Removal of the stay means that the mandate is currently in effect on employers covered by the ETS. However, OSHA will not take enforcement action on covered employers that are actively working to comply with the rule until January 10, 2022, for all requirements of the ETS except testing, and until February 9, 2022, for the testing. Therefore, to take advantage of the extended deadlines, it appears covered employers must be working toward implementation of the ETS.
What the ETS Requires
A one-page fact sheet of the ETS can be found on OSHA’s website, here. In summary, the mandate requires the following of covered employers:
1. determine the vaccination status of each employee (and maintain an updated roster)
2. create and enforce a program for covered employees (either vaccination, or masks and weekly testing)
3. ensure covered, unvaccinated employees wear masks and test weekly
4. provide required vaccination information to employees
Future Litigation
On Friday evening, following the release of the 6th Circuit’s decision, Kansas Attorney General Derek Schmidt, and others, appealed the ruling to the United States Supreme Court, and requested an emergency stay of the ETS. The Supreme Court will likely act quickly to decide whether to grant the application, and stay the ETS, or to redirect the appeal to the Sixth Circuit Court of Appeals to consider the matter en banc (by the full court). Continue watching for further announcements in the coming days.