Regulatory Whiplash: The Sixth Circuit Lifts the Nationwide Stay on the Federal Vaccine Mandate and OSHA Sets New Deadlines for Employers

By Shiloh D. Theberge, Esq. and Ann Freeman, Esq.

In Brief

On Friday, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the nationwide stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) mandating COVID-19 vaccines, or testing and masking, which had previously been stayed by the U.S. Court of Appeals for the Fifth Circuit.

As a result, OSHA put the following “Litigation Update” on its COVID-19 Vaccination and Testing ETS Website:

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

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.

It remains likely that the parties will appeal the result of the Sixth Circuit litigation and the United State Supreme Court will ultimately decide whether the ETS will be implemented.

What Do Employers Do Now?

In the meantime, the regulatory whiplash of rushing toward the deadline for compliance only to be stopped short by the federal courts is challenging even for seasoned professionals familiar with federal administrative processes.

Employers covered by the ETS should implement the basic requirements of the ETS by January 10 and the testing requirements of the ETS by February 9, namely:

• Either mandate vaccinations OR require weekly testing and masking for unvaccinated employees
• Have and enforce a written policy or update an existing policy to include all of the requirements set out in the ETS
• Determine the vaccination status of all employees, obtain proof of such vaccination, and maintain a roster of employees with their vaccination status
• Remove any employee who tests positive from the workplace and keep the employee out of work until the employee (a) receives a negative result on a COVID-19 nucleic acid amplification test (“NAAT”) following a positive result on a COVID-19 antigen test if the employee chooses to seek a NAAT test for confirmatory testing, (b) meets the return-to-work criteria in CDC’s “Isolation Guidance,” or (c) receives a recommendation to return to work from a licensed healthcare provider
• Provide notifications to employees and maintain certain records regarding employee vaccination status and testing compliance

OSHA ETS Background

On November 5, 2021, OSHA published a 490-page ETS setting out the details of the federal vaccine mandate announced by President Biden on September 9, 2021 for private, and some public, employers with 100 or more employees.  The OSHA ETS answered many questions that employers had been asking since the federal mandate was announced.

Employers and their legal counsel analyzed the contents of the ETS and began drafting policies implementing vaccination mandates or requiring testing and masking of unvaccinated employees to ensure compliance by January 4, 2022, as well as working to meet all of the other requirements of the ETS by December 5, 2021.

At the same time, counsel for several states prepared and filed emergency motions requesting that the courts enjoin enforcement of the ETS. On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the ETS on a nationwide basis. On November 12, 2021, the Fifth Circuit issued a permanent stay after reviewing the initial briefing by the parties. Subsequently, on November 16, 2021, the Judicial Panel on Multidistrict Litigation held a lottery to randomly select an appeals court to hear all of the consolidated cases challenging the ETS. The Sixth Circuit emerged as the “winner” and the ETS remains there—at least until it makes its way to the U.S. Supreme Court.

Stay tuned as this matter continues to evolve.  If you have any questions about the ETS, please contact your Bernstein Shur employment attorney for assistance.