On December 17th, 2021, the United States Court of Appeals for the Sixth Circuit lifted the stay on the Occupational Safety and Health Administration’s (OSHA) vaccination and testing standard. Effectively, the decision allows OSHA to reimplement the emergency temporary standard (ETS). In brief, covered employers may choose to ensure that employees are vaccinated against the coronavirus or undergo weekly testing. Earlier, on November 12, the Fifth Circuit Court of Appeals had placed a stay on the ETS. Later, the Sixth Circuit won a Multi-District Litigation lottery to hear arguments levied against the mandate.

Overview of OSHA’s Vaccination and Testing Standard

Specifically, the vaccination and testing standard covers employers with at least 100 employees. In summary, the ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy. Therefore, covered employers must now require their employees to either:

  • receive a COVID-19 vaccination; or
  • undergo regular COVID-19 testing and wear a face covering at work.

Furthermore, the ETS would not require employers to pay for testing or face coverings. However, to comply with other laws, regulations, and collective bargaining agreements, some employers would indeed be required to pay for testing. In addition, employers would provide paid time for workers to get the COVID-19 vaccine. Additionally, the ETS would require employers to do the following:

  • Determine the vaccination status of each employee by obtaining acceptable proof of vaccination;
  • Maintain records and a roster of each employee’s vaccination status;
  • Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis, and remove such employees from the workforce, regardless of vaccination status, until they meet required criteria;
  • Ensure each worker who is not fully vaccinated tests for COVID-19 weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer); and
  • Ensure that, in most circumstances, each unvaccinated employee wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

Enforcement of the Vaccination and Testing Standard

In order to account for uncertainty originally created by the stay, OSHA has moved compliance and enforcement deadlines for the ETS. Accordingly, OSHA will not issue citations for noncompliance until January 10th, 2022. Furthermore, OSHA will not enforce the standard’s testing requirements until February 9. In the meantime, OSHA expects employers will exercise reasonable, good faith compliance with the standard.

Future of the Vaccination and Testing Standard

The Sixth Circuit Court’s decision is the latest litigation update on OSHA’s vaccine ETS which was published in the Federal Register on November 5. Overall, the ETS is a proposal for a permanent standard. To that end, OSHA has extended the comment period for that rule by 45 days, allowing until January 19. Subsequently, petitioners consisting of 26 trade groups have immediately requested an emergency stay on the ETS with the Supreme Court. Specifically, the request alleges the following:

  1. OSHA exceeded its authority;
  2. The ETS will inflict irreparable harm against private employers;
  3. Vaccine mandates will diminish the workforce
  4. Employers will incur costs that will negatively affect the supply chain

In either case, OSHA is accepting comments on their proposal for a permanent vaccination and testing standard until January 19. Parties may submit their comments in Docket No. OSHA-2021-0007.