Back to the Beginning -- 6th Circuit Lifts Stay on OSHA Vaccination Mandate

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Da capo is an Italian phrase frequently used in music. Literally translated as “from the head,” and often abbreviated D.C., the phrase instructs the musician to go back to the beginning and start again.

A similar instruction, Del Segno and abbreviated D.S. means “from the sign.” The “sign,” resembles the letter “S” with a forward slash through it. So a musician who encounters the D.S. instruction must go on a scavenger hunt through the music they have already played in search of the sometimes elusive “sign.”

If the frustration of frantically searching for the “sign” isn’t enough, sometimes D.C. or D.S. is followed by another phrase – “al fine” or “al coda.” Al fine, which means “to the end,” is easy enough. The musician continues playing until they get to the end of the music.

Al coda, which translates “to the tail” instructs the musician to play until they reach the coda sign (which resembles an oval with a plus sign through it) and then to jump to the end. Once the musician reaches the coda sign, they need to jump ahead to the coda, which is marked with an identical sign.

Following a musical roadmap with Italian instructions and random symbols can be unsettling even for experienced musicians. “Unsettling” is a word that also can be used for the legal status of OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which applies to most employers with 100 or more employees (Covered Employers) There are exceptions only for many state and local government employees and employees in industries, such as healthcare, which are subject to other OSHA COVID-19 requirements.

History of OSHA’s Vaccination ETS

Just over a month ago, in “Vexations and Uncertainty in Workplace COVID-19 Vaccine Mandates, I discussed the ETS, which was effective on November 5, 2021. I also discussed the United States Court of Appeals for the Fifth Circuit (5th Circuit)’s 22-page decision BST Holdings, L.L.C. v. OSHA (BST) which stayed (delayed) OSHA’s ETS until the Court conduct a full hearing after briefs from the parties.

However, BST wasn’t the only federal case filed about the ETS. Because 36 similar cases were filed in several federal circuit courts, the cases were combined. Under the Judicial Panel on Multidistrict Litigation, the Sixth Circuit (6th Circuit), which sits in Cincinnati and covers Michigan, Ohio, Kentucky, and Tennessee, “won” the lottery to hear all 37 cases together.

On December 17, 2021, the 6th Circuit issued a 57-page decision which removed the 5th Circuit’s stay, with legal findings nearly the polar opposite of the 5th Circuit’s. The decision wasn’t unanimous – Judge Larsen, one of the three judges dissented.

That experienced jurists can come to opposite decisions based about ETS evidences the complexity of the legal issues surrounding ETS and vaccine mandates generally. Those jurists don’t even agree on the Court’s role in reviewing ETS. Although Judge Gibbons concurred (agreed) with the Opinion written by Judge Stranch, he cautioned that much of the analysis considered issues that go beyond proper judicial review of OSHA’s regulation.

While these decision present numerous academically interesting legal issues, they have put Covered Employers in a situation similar to that of a musician encountering a del capo or del segno instruction. During this holiday season, Covered Employers now must regroup, go back to the beginning and start anew to plan for ETS compliance.

What Does ETS Require?

Recognizing the challenging situation created by the flip-flop of Court decisions, OSHA has announced it won’t issue citations for noncompliance before January 10, 2021. OSHA also announced it won’t issue citations for noncompliance with ETS’ testing requirements before February 9, as long as a Covered Employer is “exercising reasonable, good faith efforts to come into compliance.” OSHA also extended the comment period for ETS until January 19, 2021.

ETS requires Covered Employers to:

  • Determine the vaccination status of each employee, including recordkeeping requirements

  • Provide up to four hours of paid leave per vaccine dose.

  • Provide paid leave for employees to recover from any side effects from the vaccine

  • Require unvaccinated employees to have weekly testing for COVID-19

  • Require unvaccinated employees to wear masks indoors and in vehicles

  • Require employees to inform their employer of positive COVID-19 test results

  • Remove employees with COVID-19 from the workplace

  • Provide employees with access to information about ETS and the employer’s policies in a language the employee can understand

  • Promptly report work-related COVID-19 hospitalizations and deaths to OSHA

ETS doesn’t necessarily apply to all of a Covered Employer’s employees. Employees who work from home or do not report to a workplace where others are present and employees who exclusively work outdoors need not comply. ETS also does not require employers to pay for testing or face coverings.

Legal exceptions to vaccination apply for medical reasons and as reasonable accommodations under civil rights laws. But exempt employees then must comply with the testing requirement.

What Employers Should Do Next

Covered Employers now must act quickly to create policies and procedures implementing ETS. Fortunately, OSHA’s website includes sample policies and forms for Covered Employers. Among the policies and forms Employers should create include:

  • Mandatory COVID-19 Vaccination Policy. Employers must decide whether they will require all employees to be vaccinated (unless they have a bona fide medical or religious exemption) or whether they will allow employees to elect weekly COVID-19 testing as an alternative.

  • Policy for COVID-19 testing for employees who are not fully vaccinated or who have a bona fide medical or religious exemption from vaccination. The policy should include a procedure for excluding employees who don’t get timely tests.

  • Policy requiring employees to notify their employer of a positive COVID-19 test, notification of other potentially affected employees, and requirements before an employee who tests positive may return to work.

  • Policy for wearing masks when working indoors or in a vehicle with others. Determine whether this policy will apply only to unvaccinated employees.

  • Easy-to-read explanations of these policies to be distributed to employees in a language they can understand. The explanations should explain which requirements are mandated by OSHA and should explain the consequences to employees who refuse to comply.

  • Supplement the employee handbooks with these items.

Covered Employers also will need to update their operations and infrastructure, given the ETS:

  • Determine which job positions and which employees must comply (employees who solely telecommute or who work solely outdoors and do not ride in a vehicle with other employees are excluded).

  • Establish a method for tracking employee notifications, vaccination status, including copies of vaccination cards, and weekly test results.

  • Identify convenient vaccination and testing sites for employees. Larger employers may consider onsite testing vendor. Employers also must decide how tests will be paid for.

  • Updates to payroll systems to credit employees with paid time off to obtain their vaccinations, sick leave to recover from side effects, and testing.

  • Updates to the onboarding process to ensure new employee compliance.

  • Process for reporting work-related COVID-19 inpatient hospitalizations to OSHA within 24 hours and deaths within eight hours of learning about them.

Covered Employers Should Be Prepared for Change

Just as musicians with a D.C. al coda must be on the lookout for a coda sign that will instruct them to jump to a different place in the music, Covered Employers must be nimble as OSHA’s ETS works its way through the regulatory and court process.

Comments on the ETS are due on January 19, after which OSHA will undergo the traditional rulemaking process. It’s common for the final rules to vary from the original proposal, or in this case ETS.

Plus, the 6th Circuit ruling isn’t a final determination in the multidistrict matter. Eventually, the case will be briefed and argued before the court. And the plaintiffs might ask for further review of the 6th Circuit’s decision, either before the 6th Circuit judges en banc or by the U.S. Supreme Court.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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