On December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay previously placed on OSHA’s so-called “vaccinate or test” Emergency Temporary Standard (ETS). Consequently, covered employers with 100 or more employees will now be required to comply with the ETS under the newly announced deadlines of January 10, 2022 for all non-testing requirements and February 9, 2022 for testing requirements. As explained below, however, the “vaccinate or test” ETS is still subject to further challenge. Several petitions to stay the ETS have been filed with the U.S. Supreme Court.
How did we get here?
In early November, OSHA issued an ETS generally requiring that all private employers with 100 or more U.S. employees adopt either: (i) a mandatory vaccination policy; or (ii) a policy that permits employees to choose between becoming fully-vaccinated and submitting to weekly COVID-19 testing. The initial compliance deadline for the ETS as-drafted was December 6, 2021, with employers then having until January 4, 2022 to ensure that employees who were not fully vaccinated were tested for COVID-19 at least weekly. Prior posts concerning the ETS can be found here, here, and here.
Legal challenges to the ETS immediately ensued and, on November 12, the Fifth Circuit Court of Appeals issued a stay of the ETS pending judicial review. Shortly thereafter, on November 16, all of the many legal cases challenging the ETS were consolidated into one litigation to be heard by the Sixth Circuit Court of Appeals, chosen via lottery.
One week later, OSHA asked the Sixth Circuit to dissolve the Fifth Circuit’s stay. The agency simultaneously issued a statement on its website noting that, “while OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”
On December 17, 2021 (just two days after denying requests for initial hearing en banc), the Sixth Circuit dissolved the stay placed on the ETS, which opened the door for OSHA to renew its plans to enforce the ETS in the coming year. Continue Reading