by Lana L. Rupprecht, Esq. - AVP Product Compliance
December 20, 2021
What a weekend!
Just as we were about to start writing a blog summarizing various state vaccination-related laws, we received word on late Friday evening, December 17, that the 6th Circuit Court of Appeals dissolved the prior stay on the OSHA Vaccination and Testing Emergency Temporary Standard (OSHA ETS).
In response, OSHA has announced that it will enforce the ETS but will not issue citations for noncompliance with any of its requirements until January 10 or after and will not issue citations for noncompliance with testing requirements until February 9.
In other words, the OHSA ETS is back, the compliance deadlines are delayed, and employers subject to it need to comply.
Background on the OSHA ETS
As a refresher, the OSHA ETS, published November 5 in the Federal Register, requires private employers with 100 or more employees to implement vaccination or weekly testing requirements for their employees. The previous deadline to do so was January 4, 2022; other requirements such as implementing mandatory policies in compliance with the ETS, masking, and temporary removal of COVID-positive employees from the workplace had a compliance deadline of December 6, 2021.
In November, the 5th Circuit Court of Appeals issued stays stopping implementation of the OSHA ETS and ordering that OSHA "take no steps to implement or enforce" the ETS "until further court order.” OSHA announced shortly thereafter that it was suspending implementation and enforcement of the ETS.
On November 16, the 6th Circuit Court of Appeals was tapped to decide all federal court challenges relating to the OSHA ETS, and the government filed a motion requesting that the 6th Circuit dissolve the stay.
Below are links to our prior blogs summarizing these developments and the OSHA ETS below (or just scroll down).
December 17, 6th Circuit Opinion
As mentioned, the 6th Circuit Court of Appeals, on the evening of December 17, granted the government’s motion to dissolve the 5th Circuit’s stay of the OSHA ETS.
A three-judge panel conducted the review. Two judges voted to dissolve the mandate and one dissented. You can read the entire opinion here.
The court stated that OSHA has “long asserted its authority to protect workers against infectious disease.” The majority further stated:
Relying on employee declarations, other Petitioners claim that they will need to fire employees, suspend employees, or face employees who quit over the standard. These concerns fail to address the accommodations, variances, or the option to mask-and-test that the ETS offers. For example, employers that are confident that they can keep their employees safe using alternative measures can seek a variance from the standard … Or employers may choose to comply with the standard by enforcing the mask-and-test component, which are entirely temporary in nature and do not create irreparable injuries. These provisions of the ETS undercut any claim of irreparable injury.
The 6th Circuit’s decision was appealed on an emergency basis to the U.S. Supreme Court. We will keep you posted!
OSHA Will Require Compliance but Deadlines are Delayed
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.
Employers, who have not done so already, should ramp up their efforts to comply with the OSHA ETS. Remember, and as we previously reported, the OSHA ETS applies to private employers with 100 or more employees. More information can be found here.
The OSHA ETS does not apply to employers subject to theInterim Final Rule (“IFR”) issued by the Centers for Medicare and Medicaid Services (“CMS”) applicable to Medicare- and Medicaid-certified providers and suppliers. It also does not apply to employers subject toExecutive Order (“EO”) 14042 applicable to federal contractors or subcontractors. The status of each can be found here and here.
Also, make sure you confer with counsel, especially if you have employees located in a state that imposes limitations on vaccination mandates.
Matrix Can Help!
Matrix offers ADA and medical vaccine exemption services for its ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at [email protected].