On December 17, 2021, a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit lifted the nationwide injunction against the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) issued by the federal Occupational Safety and Health Administration (OSHA). The injunction had been imposed by a unanimous three-judge panel of the Fifth Circuit on November 6, 2021.[1] As a result of the Sixth Circuit’s ruling, the ETS can now go into effect, and OSHA can take action in support of it.
The Sixth Circuit majority issued a lengthy decision agreeing with the Biden administration’s view that OSHA has the statutory authority to implement an emergency standard to protect workers from dangers due to the COVID-19 pandemic. The opinion also concluded that OSHA had provided sufficient evidence to support the “grave danger” requirement necessary to implement an ETS, a process which itself bypasses standard notice and comment rulemaking. Judge Joan Larsen issued an 18-page dissent, underscoring a divide in thought on this highly charged subject.
On the heels of the Sixth Circuit’s decision, OSHA issued a statement, announcing it will move forward with the ETS but will not issue citations for noncompliance with any of the requirements of the ETS before January 10, 2022. The statement further reveals that OSHA will not issue citations for noncompliance with mandatory vaccination or testing requirements of the ETS before February 9, 2022, as long as employers exercise reasonable “good faith efforts” to come into compliance with the ETS.
Is This Decision Final?
The Sixth Circuit’s ruling was immediately challenged by various parties directly to the U.S. Supreme Court, which has also been asked to review another injunction on a federal vaccine mandate applying to health care workers. The nation’s highest court recently declined to overturn vaccine mandates for health care workers in New York as well as in Maine. However, the Supreme Court may—or may not—take a different view about whether a challenge to the authority of a federal Executive Branch agency to impose sweeping health and safety requirements to workers outside of the health care realm is justiciable.
What Does the ETS Require?
The reinstituted ETS mandates employers with 100 or more employees to establish, implement, and enforce either:
- a mandatory COVID-19 vaccination policy, or
- a policy allowing employees to choose to either be fully vaccinated against COVID-19 or provide proof of regular testing for COVID-19.
With either approach, employers must allow workers to request appropriate exceptions for medical contraindications to vaccination or medical necessity requiring delay in vaccination, and must allow employees to request reasonable accommodations based on a disability or sincerely held religious belief.
Updated Enforcement Deadlines
Earlier in the pandemic, OSHA took the position that if an employer exercised good faith efforts to come into compliance with its standards, the agency would not issue citations. OSHA appears to be taking a similar approach with respect to ETS enforcement. It remains to be seen whether leniency in enforcement will extend beyond the dates listed above.
On December 18, 2021, OSHA set new deadlines for enforcement of the ETS. As long as an employer is exercising reasonable “good faith efforts” to come into compliance with the ETS, the following revised enforcement deadlines apply:
- January 10, 2022—the deadline for an employer to collect and maintain the vaccination status of its employees and provide workers with information about its vaccination policy, regulations, and safety. This is also the date by which all unvaccinated employees must wear face coverings when indoors or inside a vehicle with others for work purposes.
The ETS provides exceptions to face covering requirements:
- when an employee is alone in a room with floor to ceiling walls and a closed door,
- for a limited time while the employee is eating or drinking at the workplace,
- for identification purposes in compliance with safety and security requirements,
- when an employee is wearing a respirator or face mask, or
- when the employer can show the use of face coverings is infeasible or creates a greater hazard than compliance with the ETS’s face covering requirements.
Face covering mandates from state or municipal jurisdictions are not preempted by the ETS where they do not conflict with this rule.[2] This means that if a state or local body requires something more (e.g., New York and California), the state or local requirements will also apply.
- February 9, 2022—the deadline to ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within seven days before returning to work (if away from the workplace for a week or longer), should the employer choose to offer a testing / face covering option.
Interaction with Other Vaccine or Face Covering Mandates
The Biden administration maintains that the ETS preempts and invalidates any state or local requirements that “ban or limit an employer’s authority to require vaccination, face covering or testing.” But the interplay between the ETS and various vaccine and face covering mandates throughout the country is bound to be a source of litigation. The ETS provides a floor or minimum for protection, but it does not limit employers (or jurisdictions) who act to impose stricter protocols than the ETS requires, subject to other legal requirements, such as making reasonable accommodations under the Americans with Disabilities Act or Title VII of the Civil Rights Act of 1964. This could include, for example, any additional protections required by jurisdictions, such as full masking of all employees regardless of vaccination status or mandatory vaccination (without a testing option), like that imposed by New York City. Notably, many such state and local requirements also apply to employers with fewer than 100 employees not covered by the ETS.
What Employers Should Do Now
While further judicial review will likely be forthcoming, employers should do the following:
- Get quickly reacquainted with both the ETS requirements and current state and/or local jurisdiction vaccine and face covering requirements, in order to remain fully compliant.
- Prepare a written policy to comply with the ETS, even if an existing written policy is in place. OSHA’s model policies for mandatory vaccination and vaccination-or-testing are available here.
- Begin, or restart, collection of employee vaccination data to determine the requirements that will apply to each individual.
- In workplaces where employees are represented by unions and covered by collective bargaining agreements, be prepared to meet, upon request, with employees’ bargaining representatives regarding the impact and effects of the ETS, or resume negotiations to the extent they had already been initiated.
This is an evolving issue, and we will continue to monitor developments.
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For more information about this Insight, please contact:
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Robert J. O’Hara |
Susan Gross Sholinsky |
Steven M. Swirsky |
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Nathaniel M. Glasser |
Nancy Gunzenhauser Popper |
Eduardo J. Quiroga |
ENDNOTES
[1] The Sixth Circuit was assigned the task of consolidating several suits filed against OSHA through the lottery process via the Judicial Panel on Multidistrict Litigation on November 16, 2021.
[2] OSHA does not intend for the ETS to preempt non-conflicting state or local requirements of general applicability that apply to “workers and nonworkers alike,” that “regulate workers simply as member of the general public,” and that are consistent with the federal standard. See https://www.osha.gov/coronavirus/ets2/faqs at 1.B.
