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On Friday, December 17, 2021, the Sixth Circuit Court of Appeals reversed an earlier stay by the Fifth Circuit, and allowed OSHA’s COVID-19 Emergency Temporary Standard (“ETS”) to move ahead.
By way of background, on November 5, 2021, OSHA unveiled its ETS mandating employers with at least 100 employees to develop a vaccination policy (by December 6, 2021) that requires employees to either receive the Covid-19 vaccine or submit to weekly testing by January 4, 2022. Numerous legal challenges have been lodged against OSHA and, on November 12, 2021, the Fifth Circuit Court of Appeals issued a 22-page order staying enforcement and implementation of the ETS. The Sixth Circuit then was randomly selected to decide the consolidated case, encompassing all challenges to the ETS brought nationally.
In reversing the Fifth Circuit and reinstating the Covid-19 ETS, the Sixth Circuit Court found historical support for OSHA’s authority to protect workers against infectious disease, and ruled that the changing exigencies of increasing returns to the workplace, the rise of new variants, and the availability of vaccines, evidenced an emergency worthy of an ETS.
Following the Sixth Circuit’s blessing, OSHA announced that it “can now once again implement this vital workplace health standard.” However, because of the uncertainty around the ETS’ fate over the past month, OSHA is providing employers additional time to comply with the rules that had been scheduled to go into effect on January 4, 2022. As long as an employer is exercising reasonable, good faith efforts to come into compliance, OSHA will not issue citations for non-compliance with any part of the Covid-19 ETS before January 10, 2022, or with the testing requirements before February 9, 2022.
With the Sixth Circuit’s ruling, employers are wondering about the next steps. First, while the Sixth Circuit lifted the stay of the preliminary injunction, employers need to remember that the court has not decided the case on the merits, which include issues such as whether the ETS overrides state or local laws that restrict or impact employer vaccination requirements. As of right now, Alabama, Arkansas, Florida, Iowa, Kansas, Montana, North Dakota, Tennessee, Texas, Utah, and West Virginia have enacted measures that would restrict or impact vaccination requirements.
Second, several of the plaintiffs in the Sixth Circuit case have already requested the Supreme Court to enjoin the OSHA ETS so, as most predicted, the Supreme Court will ultimately decide this issue. Of course, it remains to be seen whether the Supreme Court will rule on the plaintiffs’ request before the updated January 10, 2022 deadline.
As the issues surrounding the next steps are numerous, please contact your FMG attorney for more information on ETS compliance.