It’s back on and full steam ahead: the U.S. 6th Circuit Court of Appeals reinstated the Department of Labor’s (DOL) Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). How did we get here? And what does this mean for employers moving forward?
For a refresher on what the ETS entails, read our earlier blog on this topic, here.
A Bit of Background on the OSHA ETS
After OSHA issued its ETS in early November, several states, employers, trade associations, and religious groups filed lawsuits against OSHA, challenging the ETS in multiple courts across the country. When there are multiple challenges filed in multiple judicial circuits, the federal courts use a lottery system, which consolidates the challenges to be heard by one circuit court. However, before the federal courts were able to choose the circuit court that would hear the matter, the 5th Circuit Court of Appeals issued an injunction, which “stayed,” or suspended, the ETS. This injunction, granted one day after the ETS went into effect, paused the enforcement of the ETS, pending further legal action.
The many ETS challenges were consolidated before the 6th Circuit Court of Appeals. On November 23, OSHA filed a motion asking the 6th Circuit to lift the stay issued by the 5th Circuit. The consolidated case was then brought before the 6th Circuit and a three-judge panel to decide whether OSHA exceeded its authority in issuing such an ETS.
The 6th Circuit’s Decision (Abridged)
After hearing arguments, the 6th Circuit Court announced their decision to reinstate the ETS on Friday, December 17, in a 2-1 decision. The Court held that OSHA did not exceed its authority in issuing the ETS, as the Occupational Safety and Health Act “requires OSHA to issue an emergency standard if necessary to protect workers from a ‘grave danger’ presented by ‘exposure to substances or agents determined to be toxic or physically harmful or from new hazards.’” The Court’s conclusion was that regulating an “agent that causes bodily harm,” such as COVID-19, is fully within OSHA’s authority, noting that OSHA has previously regulated infectious diseases, like HIV and hepatitis B and C.
As soon as the 6th Circuit’s decision was announced, both sides jumped into action.
OSHA Provides Extensions
After receiving the favorable opinion, OSHA and the DOL quickly issued a statement providing an extension for compliance with the ETS. When the ETS was initially published in November, it required covered employers to have documented accurate vaccination status for all employees by December 5, 2021, maintain a roster of these statuses, and adhere to the Vaccine-Or-Test mandate no later than January 4, 2022.
In its most recent statement, OSHA indicated that, in order to provide employers with sufficient time to come into compliance, the following extensions would apply… so long as “an employer is exercising reasonable, good faith efforts to come into compliance with the standard”:
- OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10, 2021; and
- OSHA will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2021.
Additional Legal Challenges
From those opposing the ETS, a multitude of parties filed emergency applications with the U.S. Supreme Court to block the ETS. The Supreme Court is not required to order a stay or block the ETS and may deny review of the applications, as it has done for other cases seeking injunctive relief of COVID-related restrictions and mandates. However, the Supreme Court could grant review of the applications and issue another stay, pending review by all Supreme Court Justices. Given the new OSHA deadlines, discussed above, it is possible we could hear from the Supreme Court before the January 10 deadline.
What Employers Should Do
Given the reinstatement of the ETS, and the uncertainty of whether the Supreme Court will get involved, it is important for employers to continue moving forward in preparation for compliance with the ETS. For more information on how to comply with the OSHA ETS by the newly established deadlines, please read our blog here and find additional guidance from OSHA here.
What Is ReedGroup Doing?
ReedGroup is working with its compliance and product teams to ensure we are assisting our customers in meeting their obligations under the ETS. If you are a large employer seeking solutions for COVID-19 leave, accommodation, and vaccine compliance, reach out to us for more information!
Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.