Late Friday evening, December 17, the Sixth Circuit Court of Appeals issued a ruling which gave life to OSHA’s emergency temporary standard ("ETS") which requires employers with 100 or more employees to implement a vaccine mandate policy with a weekly testing option. OSHA’s ETS had been subject to a temporary stay issued by the Fifth Circuit of Appeals. Numerous lawsuits were filed across the country seeking to block OSHA’s enforcement of the ETS. Those lawsuits were consolidated while the Fifth Circuit’s stay remained in place. The Sixth Circuit Court of Appeals was chosen, by lottery, as the court to hear arguments on whether the stay should be enforced or dissolved. The Sixth Circuit’s decision dissolves the stay allowing OSHA to enforce the ETS.
With the decision from the Sixth Circuit, large employers subject to the ETS will need to scramble in order to meet the requirements of the standard. While the ETS first required compliance by January 4, shortly after the Sixth Circuit published its opinion, OSHA issued a press release noting that, given the uncertainties surrounding the ETS in light of the litigation filed across the country seeking to block its enforcement, it would not begin issuing citations for noncompliance with any requirements of the ETS before January 10, and it will not issue any citations for noncompliance with the testing requirements of the ETS until February 9, so long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard. Employers subject to the ETS who fail or refuse to comply with the standard by these deadlines will be subject to OSHA citations, which, in 2021, equated to $13,653 for a serious violation. The penalty amount will increase beginning in January, 2022.
Immediately after the Sixth Circuit Court of Appeals issued its decision allowing OSHA's enforcement of the ETS, various conservative groups and business groups indicated that the decision would be appealed to the Supreme Court. To date, the Supreme Court has been hesitant to get involved in state and local vaccine mandates, allowing those mandates to remain in place. It remains to be seen whether the Supreme Court will agree to review the decision by the Sixth Circuit, and if so, whether the decision will be affirmed or reversed. What we know for sure is that there will be more to come, and we will be sure to provide you with the information as it is published.
The Sixth Circuit’s ruling has no effect on the current status of what is commonly referred to as the Federal Contractor Vaccine Mandate. The Federal Contractor Vaccine Mandate remains subject to a nationwide stay following a decision by the United States District Court for the Southern District of Georgia.
As we approach January 10, the date OSHA will begin issuing citations for noncompliance with the requirements of the ETS, those employers with 100 or more employees need to be sure to review our E-blast which provided all the details necessary for full compliance. You can access that particular E-blast by clicking here. You can also contact Philip Siegel with compliance questions via e-mail by clicking here, or you can reach him directly at (404) 469-9197.
