Stay Lifted on New Federal COVID-19 ETS

On December 17, a three-judge panel at the U.S. Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccinate-or-Test ETS that was issued in early November by the Fifth Circuit. That same night, several of the petitioners in the legal challenges to the ETS appealed the Sixth Circuit’s decision to the Supreme Court.

The Sixth Circuit’s rationale for lifting the stay is that 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 health care system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs[.]” 

Additionally, and importantly, the Court recognized that:

[t]he ETS does not require anyone to be vaccinated. Rather, the ETS allows covered employers—employers with 100 or more employees—to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces. Employers have the option to require unvaccinated workers to wear a mask on the job and test for COVID-19 weekly. They can also require those workers to do their jobs exclusively from home, and workers who work exclusively outdoors are exempt. The employer—not OSHA—can require that its workers get vaccinated, something that countless employers across the country have already done.

Nearly immediately upon issuance of the Sixth Circuit decision, OSHA updated its website and the Dept. of Labor issued this news release. The agency indicates that it will move forward immediately to implement and enforce the ETS, but thankfully, provides a few additional weeks for employers to be in full compliance with the ETS. The key first date, to have everything but testing in place, is January 9 followed by implementation of the testing program by February 8.

Note that compliance is technically required now. However, OSHA makes clear that it will use its enforcement discretion to not cite companies for non-compliance between now and the new January/February deadlines if they can demonstrate that they have been making good faith efforts to come into compliance.  

According to our partners at Conn Maciel Carey LLP, look out for a decision from the full Supreme Court about the status of OSHA ETS and the CMS health care worker vaccine-mandate likely during the week of January 10. Similarly, either continue or begin to take steps to come into compliance with OSHA’s vaccinate-or-test ETS.