On Friday, December 17, 2021, the Sixth Circuit dissolved the Fifth Circuit’s stay of OSHA’s Emergency Temporary Standard (ETS) requiring COVID-19 vaccinations or weekly testing for workers at most companies with 100 or more employees.
As outlined in our prior eAlerts, just one day after the ETS was published on November 5, 2021, the U.S. Court of Appeals for the Fifth Circuit halted OSHA’s implementation of the ETS by issuing a stay order. Numerous other challenges were filed against the ETS across the country, and on November 16, 2021, the U.S. Court of Appeals for the Sixth Circuit won the multi-circuit lottery that was held to determine which circuit would hear the consolidated challenges. For more details on these initial procedural events, our relevant eAlerts remain available: “Fifth Circuit Stays OSHA Standard Mandating Employee Vaccination or Testing,” and “OSHA ETS Challenges Transferred to the Sixth Circuit Court.”
After the lottery, OSHA asked the Sixth Circuit to dissolve the stay issued by the Fifth Circuit. The Sixth Circuit gave ETS challengers until December 7, 2021, to file responses in support of keeping the stay in place. On Friday, a three-judge panel of the Sixth Circuit issued its opinion dissolving the stay, citing in part the Omicron variant. In the controlling opinion, Circuit Judge Jane B. Stranch wrote, “OSHA has demonstrated the pervasive danger that COVID-19 poses to workers — unvaccinated workers in particular — in their workplaces. ... Fundamentally, the [ETS] is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.” Several challengers immediately filed emergency motions with the Supreme Court. Challengers also may file motions asking that all of the Sixth Circuit judges revisit the issue in an en banc opinion.
Given the delays caused by the litigation, OSHA is exercising enforcement discretion with respect to the ETS deadlines. To provide employers with sufficient time to come into compliance with the now-effective ETS, OSHA announced that it will not issue citations for noncompliance with any ETS requirements before January 10, 2022, and will not issue citations for noncompliance with the testing requirements before February 9, 2022, “so long as an employer is exercising reasonable, good faith efforts to come into compliance.” Steps employers should take on or before January 10, 2022, include the following:
- Publish a written policy requiring vaccination, or vaccination or testing.
- Obtain from employees proof of vaccine status.
- Create and maintain an employee roster of vaccine status.
- Provide paid time off to get the vaccine and reasonable PTO to recover from its effects.
- Enforce notice and removal procedures for COVID-positive employees.
- Enforce mask requirements for employees who are not fully vaccinated.
- Inform employees of vaccine-related information and the ETS’ major components.
- Comply with recordkeeping and reporting requirements.
More details on the requirements of the ETS are available in our eAlert here.
In light of these new developments, covered employers should work to finalize and implement their ETS-compliant policies unless and until the full Sixth Circuit or Supreme Court rules otherwise. For compliance assistance, or to purchase Warner’s comprehensive package of templates featured in this eAlert, including an ETS policy and related documents, please contact your Warner attorney or a member of Warner’s Labor and Employment Practice Group.