On December 17, 2021, the U.S. Circuit Court of Appeals for the Sixth Circuit reinstated the OSHA Emergency Temporary Standard (ETS) for large private employers.  This ETS requires private employers with 100 or more employees to mandate COVID-19 vaccination of their employees, subject to medical or religious exemption.  In the alternative, employees must submit to continuous periodic testing.  Originally issued on November 5, 2021, the ETS was blocked by the Fifth Circuit on the following day, November 6, 2021.  Since that time, multiple lawsuits have been filed, and consolidated before the Sixth Circuit.  This decision, issued by the Sixth Circuit Court of Appeals, serves to lift the stay and revive enforcement of the ETS.  An appeal to the U.S. Supreme Court is anticipated.

In reaching its decision, the Sixth Circuit concluded that OSHA has authority to regulate infectious diseases that “present a significant risk in the workplace,” and that COVID-19 represents such a risk.  It has killed over 800,000 Americans (including a greater number in 2021 than 2020) and continues to “spread, mutate, kill, and block the safe return of Americans to their jobs.”  The court concluded that workplaces present a heightened risk of COVID-19 exposure, and that implementation of the ETS would save “over 6,500 lives and prevent 250,000 hospitalizations.”  A continued stay blocking the ETS “would risk compromising these numbers” and cause “a significant injury to the public.”

Following the lifting of the stay, OSHA issued updated compliance deadlines for covered employers.  Employees must now be either fully vaccinated or begin periodic testing by February 9, 2022 (extended from January 4, 2022).  Also, while employers were previously required to determine the vaccination status of their employees by December 6, 2021, OSHA will delay issuance of citations until January 10, 2022, provided that the employer is “exercising reasonable, good faith efforts to come into compliance.”

At this point, covered employers should begin implementation of the OSHA ETS so as to be in full compliance by the above due dates.  While the ultimate future of the ETS likely rests with the U.S. Supreme Court, until and unless that court acts, the ETS remains in full force and effect.

If you have any questions regarding the elimination of the stay or the underlying OSHA ETS, please contact our Employment Law Group at 1-888-488-2638 or email at EmploymentLaw@c-wlaw.com.