On December 17, 2021, the Sixth Circuit Court of Appeals overturned the Fifth Circuit Court of Appeals’ Stay on the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS), thereby reinstating the ETS. OSHA announced employers will have until January 10, 2022, to comply with all requirements of the ETS, with the exception of the testing requirement, for which employers will have until February 9, 2022, to comply. While the ETS remains in effect, and under new compliance deadlines, it faces further challenges in the U.S. Supreme Court, with oral arguments set to take place in early January.
The ETS, which requires employers with 100 or more employees to mandate vaccinations or have workers undergo weekly COVID-19 testing, was stayed by the Fifth Circuit Court of Appeals in November. In light of the Fifth Circuit Order, OSHA announced it would halt implementation and enforcement of the ETS. Pending challenges to the ETS were then consolidated before the Sixth Circuit Court of Appeals.
On December 17, 2021, the Sixth Circuit dissolved the Fifth Circuit’s stay on the ETS. After finding that OSHA did not exceed its authority under the statute, the Court, relying on the 150-page preamble of the ETS, held that the challengers to the ETS would not likely succeed on the merits—that is, proving OSHA failed to demonstrate the bases necessary to issue an ETS. Further, the Court held that the irreparable harm that would result weighed in favor of the government and rejected any Constitutional challenges to the ETS. This order reinstated the ETS.
The ETS now faces further judicial scrutiny—this time by the U.S. Supreme Court. Within hours of the Sixth Circuit Court of Appeal’s decision, several emergency applications to stay the ETS were filed in the Supreme Court. On December 22, 2022, the Supreme Court announced that on January 7, 2022, it will hear oral arguments on the challenges to the Biden Administration’s vaccine mandates, including the ETS.
Despite the pending challenges to the ETS in the Supreme Court, OSHA extended the deadlines for compliance with the ETS. Its announcement stated:
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 (emphasis added).
Accordingly, employers are provided approximately three weeks to comply with most of the ETS’s requirements.
With the ETS currently in effect, while simultaneously in flux as its challenges are pending before the Supreme Court, many employers are wondering how to proceed. Despite the fact there is some uncertainty, covered employers should proceed with plans to meet the requirements of the ETS by the current January 10 and February 9 deadlines while monitoring the legal developments. As it stands now, the Sixth Circuit Court of Appeals’ ruling is law, and by taking steps now to meet the requirements of the ETS, employers demonstrate a good faith effort towards compliance in line with OSHA’s directive.
At this time, employers can:
- decide whether to implement a mandatory vaccination policy or allow for weekly testing, develop and implement a vaccination policy,
- obtain and maintain vaccination records and do so in compliance with applicable law,
- inform employees of the ETS requirements and other information required under the ETS, and
- prepare how to implement other requirements on January 10, such as providing support for employee vaccination.
Please contact a member of the MMM Employment team with any questions regarding ETS compliance.
