By: Chris Fontan
Late Friday, December 17, 2021, a three judge panel of the Sixth Circuit Court of Appeals dissolved a previously issued stay of the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”). Shortly after the ruling by the Sixth Circuit, OSHA posted a notice on its website, adjusting its previously established deadlines for compliance with the ETS.
In a 2-1 split vote, the three judge panel determined that, in light of the continued spread of COVID-19 variants, OSHA “must be able to respond to dangers as they evolve.” Judge Jane B. Stanch, an appointee President Barack Obama, authored the opinion. Judge Julia Smith Gibbons, an appointee of President George W. Bush, sided with Judge Stanch. Judge Joan Larsen, an appointee of President Donald Trump, dissented, noting employees are exposed to COVID-19 even while not working and OSHA had not established there was “grave danger” in the workplace or the ETS requirements would correct that.
OSHA quickly recognized the victory, while at the same time acknowledging the uncertainty that the litigation has caused. As a result, OSHA notified the public of new compliance dates concerning the ETS. According to a new notice on the agency’s website, OSHA announced that it was “exercising enforcement discretion with respect to the compliance dates of the” mandate. OSHA stated that “it will not issue citations for noncompliance with any requirements of the [mandate] before January 10 and will not issue citations for noncompliance with the [mandate’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 also promised to “work closely with the regulated community to provide compliance assistance.”
Based on this announcement, the current deadlines for the OSHA ETS include:
- Immediately: Covered employers must start taking good faith efforts to come into compliance with the ETS.
- January 10, 2022: New deadline for covered employers to:
- Have written COVID-19 Vaccine-or-Testing Policy prepared describing the requirements with regard to vaccinations and testing
- Provide specific information about vaccines and the ETS requirements to employees
- Determine the vaccination status of each employee (and keeping records related to vaccination status)
- Start requiring masking of unvaccinated employees
- Provide PTO for employees to get vaccinated
- February 9, 2022: New deadline for covered employers to:
- Start requiring weekly COVID-19 testing for unvaccinated employees (and keeping records related to weekly testing)
Within several hours of the decision, multiple parties, including 27 states, filed emergency motions with the U.S. Supreme Court to block the ETS and requested an emergency stay of its enforcement. Those applications will be reviewed by Justice Brett Kavanaugh, who is assigned to hear petitions from the Sixth Circuit Court of Appeals. At this point, the Supreme Court has several options, including: granting the petitioners’ applications and staying the ETS pending review of the entire Court; granting the petitioners’ application but, given OSHA’s decision to delay compliance dates, not issuing a stay and simply referring the applications to the full Court for a decision; or taking no action on the applications pending review of the full Court.
Although it is always difficult to predict how quickly a ruling might come, experts predict that the Supreme Court will most likely take action in advance of January 10, 2022, to give employers some certainty. Employers are encouraged to continue to monitor developments with the ETS and pending litigation involving its implementation and to contact their labor and employment counsel for additional information concerning these developments. If you need Labor & Employment counsel, please contact any member of Brunini’s Labor & Employment Practice Group.