What You Need to Know
- The injunction on the ETS has been lifted and the rules are currently in effect
- OSHA has offered a brief non-enforcement holiday for violations
- OSHA will not enforce regulations until January 10
- OSHA will not issue citations for employers taking good faith steps to get into compliance prior to February 9
- Petition for a further stay has been filed with the SCOTUS
Friday evening, the 6th U.S. Circuit Court of Appeals delivered a welcome decision to the Biden Administration and dissolved the injunction previously issued by the Fifth Circuit staying the OSHA Emergency Temporary Standard (ETS) requiring businesses with at least 100 employees to institute a mandatory vaccine-or-test rule. However, the future of the ETS is still uncertain, as the ruling was quickly appealed on an emergency basis to the U.S. Supreme Court.
To give employers time to comply, and assuming no further stay is issued, OSHA has stated that it will not enforce any requirements under ETS until January 10, 2022, and will not issue citations for noncompliance with the testing requirements before February. 9, so long as an employer is exercising reasonable, good faith efforts to meet the requirements.
6th Circuit Ruling
The 6th Circuit lifted the stay in a 2-1 ruling on December 17 in a decision authored by Judge Jane Stranch. The court found that OSHA had adequately demonstrated that COVID-19 posed a “grave danger” to American workers and that the ETS was “necessary” to protect American workers. The court found the ETS to be within OSHA’s statutory authority, and ruled that the constitutional challenges were unlikely to succeed on the merits. The court further found that the large number of deaths and the strain on the health care system constituted irreparable harm that weighed in favor of lifting the stay. In contrast, the court found that the injuries claimed by the plaintiffs, particularly claims that employees would be fired or quit as a result of the mandate, were “speculative.”
In a dissenting opinion, Judge Joan Larsen questioned whether OSHA had shown that a “grave danger” existed because of the magnitude of the risk outside of the workplace, and further questioned whether the ETS was “necessary” because OSHA did not explore whether other feasible alternatives existed. In a brief concurring opinion, Judge Julia Gibbons wrote specifically to note the limited role of the judiciary in deciding policy; and to warn that the judiciary should not substitute its judgment for that of the agencies delegated the authority to decide such policy.
The decision has already been appealed on an emergency basis to the U.S. Supreme Court, which very well may ultimately decide the fate of OSHA's ETS. It remains to be seen whether the Supreme Court will institute a further stay or permit the ETS go into effect. Businesses should not, however, wait for a final answer from the courts. With the lifting of the stay, the ETS is currently in effect as originally issued, with all deadlines (some of which have already passed) remaining currently intact, including the requirements for masking and the January 4 deadline for employees to receive a final vaccination dose. OSHA has announced that it will defer enforcement until January 10 and will not issue citations for those attempting in good faith to comply with testing requirements until February 9; but employers should be cognizant that a deferral of enforcement does not mean the regulations are not currently in effect. If a further stay is not granted, employers will have a very short time before they are at risk of citation for noncompliance.
Even if a further stay is granted by the Supreme Court, we do not recommend inaction by employers. At a minimum, employers should be gathering vaccination information now, which will help inform any decision as to whether to mandate vaccines or test. They should also consider how they would implement a mandatory vaccination program or provide for regular testing, including questions about how and where testing will occur, and whether the employer will pay for testing and/or the time for employees to be tested
Of course, employers may also choose to implement a vaccination policy regardless of the litigation outcome, so long as they remain mindful of state laws or executive orders that may impact such decisions, which likely will be pre-empted if the ETS is allowed to remain in place but otherwise must be considered as part of any decision.
The ruling on the ETS does not impact other litigation that is currently ongoing to challenge the vaccine mandate for federal contractors or for CMS providers, which are all proceeding separately. As a reminder, the mandate for federal contractors is currently stayed nationwide. The CMS mandate (impacting medical providers who receive Medicare funding) is subject to enforcement depending on geography. The nationwide stay has been lifted in 25 states, but the CMS mandate remains stayed from enforcement in the other 25 states. While CMS could enforce the mandate in the 25 no-stay states, CMS’ website currently states that CMS “has suspended activities related to the implementation and enforcement of [the mandate] pending future developments in the litigation.”
Additional Miles and Stockbridge OSHA Vaccine Mandate Resources
The guidance is ever evolving, so we encourage you to visit our website regularly or subscribe here for timely alerts on the latest developments on the ETS and a host of legal topics. You are also invited to reach out to any of our trusted Labor & Employment lawyers with questions or to set up a planning call.
Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.