On Friday, December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay of the Occupation Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS), which requires employers with 100 or more employees to adopt a policy either (a) mandating the COVID-19 vaccine for all employees or (b) mandating employees to show proof of vaccination status or submit to weekly testing.  Within hours, the decision was appealed to the United States Supreme Court.  That same night, OSHA issued a statement advising employers that, now that the stay has been lifted, it will allow a brief extension of the deadlines established in the initial ETS.  Covered employers must now comply with the provisions of the ETS by January 10, 2022.  If an employer opts to permit employees to undergo weekly testing in lieu of vaccination, then testing of unvaccinated employees must begin on or before February 9, 2022.

Brief Overview of Key Litigation

The ETS was published on November 4, 2021 and effective as of November 5, 2021.  A coalition of various parties immediately challenged the legitimacy of OSHA’s power to issue the ETS, and on November 6, 2021, the Fifth Circuit Court of Appeals stayed the ETS pending further judicial review.  On November 12, 2021, the Fifth Circuit further stayed enforcement of the ETS.  The Fifth Circuit order was then removed to the Sixth Circuit pursuant to a special multi-district litigation review process.

On December 17, 2021, in a 2-1 decision, the Sixth Court found that the Fifth Circuit had erred in finding that OSHA acted beyond its powers in issuing this ETS.  More particularly, the Sixth Circuit held that OSHA has authority to regulate protections against viruses and infectious diseases in the workplace, as it has in the past with other employee protections, such as from exposure to HIV, hepatitis B, and hepatitis C through promulgation of the Bloodborne Pathogens Standard, 29 C.F.R. 1910.1030.  The Sixth Circuit concluded that the petitioning parties were unlikely to succeed with their litigation against OSHA and therefore, a stay of the ETS was not appropriate and it was “dissolved.”

OSHA December 17, 2021 Response to Litigation

After the Sixth Circuit published its order, OSHA provided the following “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.

Next Steps for Employers?

The Sixth Circuit litigation has been appealed to the United States Supreme Court.  The Supreme Court may take immediate action to re-impose a stay, or it may decline the appeal, or take steps that will very easily extend beyond the OSHA deadlines above.

Where the future of this litigation is uncertain, it is important for covered employers to take immediate steps to comply with the OSHA ETS, which is now in full force and effect.

Accordingly, covered employers with 100 or more employees should take the following steps on or before January 10, 2022

  • Confirm vaccination status of employees: The ETS requires employers with 100 or more employees to determine the vaccination status of each employee and keep records related to vaccination status.
  • Adopt a Written Policy to Comply with ETS: The ETS requires employers to adopt a written policy.  OSHA has provided samples, which are a helpful starting place.  At the outset of drafting the policy, employers must decide whether they wish to adopt a policy mandating the vaccine for all employees (subject to the right of employees to request an exemption from the vaccine due to a medical condition, disability or sincerely held religious belief, which if granted, will mean the employees must submit to weekly testing), or adopt a policy allowing employees to show proof of vaccination or undergo weekly COVID-19 testing. The written policy must also, among other things, clearly state the face covering requirements for unvaccinated employees and the requirement that COVID-19 positive or untested employees must be disallowed in the workplace.  Employers also must comply with the ETS’ record-keeping and training/notice obligations.
  • Establish a Process for Employees to Seek Exemptions: As part of the policy, employers should explain how employees may seek an exemption from the vaccine due to medical condition, disability or a sincerely held religious belief.  Employers may wish to consider drafting specific exemption forms to provide to employees, and should adopt a clear process for how requests will be processed internally.

Covered employers that will permit employees to undergo weekly testing rather than be vaccinated must take the following additional steps on or before February 9, 2022.

  • Establish a Weekly Testing Process: Employers must implement a weekly testing process for on-site unvaccinated employees.  Employees who have not shown proof of full vaccination must present a negative COVID-19 test weekly.  At home or over-the-counter tests are permitted, but the test may not be both self-administered and self-read. According to the ETS, permissible tests include “proctored over-the-counter tests, point of care tests, and tests where specimen collection and processing is either done or observed by an employer.”  If an employee refuses to submit to testing in accordance with their employers’ requirements, the employer must not permit the employee to enter the workplace until they get tested.

Final Comments

The federal contractor and CMS healthcare mandates remain stayed at this time.  McLane Middleton will continue to provide updates on each of the federal mandates – OSHA ETS, Federal Contractor, and CMS Healthcare Provider – as new developments occur.

Additional Information

For further information on this topic, please view the replay of our November 10, 2021 webinar, “OSHA’s Emergency Temporary Standard on COVID Vaccinations,” with presenters Adam Hamel, Peg O’Brien, Jennifer Parent, Charla Stevens, and Laura Kahl.

Click here to view the webinar replay