Sixth Circuit Reinstates OSHA Emergency Temporary Standard

Takeaway:

• On December 17, 2021, the Sixth Circuit dissolved the Fifth Circuit’s stay of OSHA’s Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to mandate either (a) employee vaccinations or (b) that unvaccinated employees wear protective face coverings with weekly COVID tests. 

• The ETS permits employers to choose the compliance method, and does not apply to workers who exclusively work outside or from home.

On December 17, 2021, the Sixth Circuit, in a 2-1 ruling, dissolved the Fifth Circuit’s stay of OSHA’s Emergency Temporary Standard (ETS) and reinstated the ETS, which requires employers with 100 or more employees to mandate either (a) employee vaccinations or (b) that unvaccinated employees wear protective face coverings with weekly COVID tests. The ETS permits employers to choose the compliance method, and does not apply to workers who exclusively work outside or from home.

Given the numerous challenges to the ETS (as well as to the healthcare and federal contractor mandates) filed in various courts around the country, the litigation was consolidated in and transferred to the Sixth Circuit pursuant to the judicial panel on multidistrict litigation. The Sixth Circuit now has the authority to override other federal circuits. The next step will likely be a petition for rehearing before the entire Sixth Circuit (only three judges initially heard the case) or a direct expedited appeal to the Supreme Court.

Future posts will examine the Sixth Circuit’s lengthy opinion in more detail but, suffice it to say for now, the Sixth Circuit took a much more expansive view of OSHA’s role and promulgating statute than the Fifth Circuit. The Sixth Circuit viewed the ETS as properly falling within that role and neither underinclusive nor overinclusive to achieve its goals.

Although the ETS takes immediate effect, OSHA does not intend to issue citations for noncompliance before January 10, 2022. According to OSHA’s ETS webpage:

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

Covered employers should immediately consult with their human resources departments and/or employment counsel to ensure that they comply with the ETS starting next month.