Summary
Because of ongoing litigation, there has been a great deal of uncertainty over the last few weeks related to what federal COVID-19 vaccine and testing requirements private employers may need to meet and when. On Dec. 17, 2021, the Sixth Circuit Court of Appeals vacated the stay imposed by the Fifth Circuit on the federal government’s vaccine mandate. This means covered employers will need to come into compliance absent further legal action. The Sixth Circuit decision has been appealed to the U.S. Supreme Court, which will hear arguments Jan. 7, 2022. OSHA announced on Dec. 18, 2021, that the agency will not issue any citations for non-compliance before Jan. 10, 2022, and no citations for non-compliance with the testing option before Feb. 9, 2022, so long as the employer is acting in “good faith.”
Background
On Nov. 5, 2021, the Occupational Health and Safety Administration (OSHA), of the U.S. Department of Labor (DOL), issued an Emergency Temporary Standard (ETS) that laid out requirements for employers to implement, with the goal of increasing the number of vaccinated Americans. According to the ETS, “Covered employers must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.” Covered employers are employers with more than 100 employees. The agency invited public comments, and while it has not yet made the rule final, the effective date was immediate (Nov. 5, 2021); it did extend the comment period on the ETS until Jan. 19, 2022. Compliance dates were set for 30 days out (Dec. 5, 2021), and 60 days out (Jan. 4, 2022), if employers offer a testing alternative for unvaccinated employees.
Legal Challenge
On Nov. 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s ETS, while questioning the order’s constitutionality. The court ordered that OSHA “take no steps to implement or enforce,” the ETS, “under further court order.” Accordingly, OSHA suspended enforcement. Jurisdiction over the ETS challenges was moved to the U.S. Court of Appeals for the Sixth Circuit, and DOL, on Nov. 23, 2021, filed a motion to lift the stay imposed by the Fifth Circuit, while requesting the court move the challenge to a different court. Those motions were denied, but then on Dec. 17, 2021, the Sixth Circuit, in a 2-1 vote, vacated the stay imposed by the Fifth Circuit, meaning OSHA can move forward with implementation and enforcement of the ETS.
Next Steps
After the Dec. 17 decision vacating the stay, petitioners filed an emergency motion with the U.S. Supreme Court to stay the Sixth Circuit’s order vacating the Fifth Circuit stay. The Supreme Court will hear arguments on Jan. 7. OSHA will begin issuing citations for non-compliance after Jan. 10.