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Sixth Circuit Gives Go Ahead for Vax or Test Mandate

December 23, 2021

Large Employers Should Continue ETS Compliance Planning and Implementation

By Michael Burns, courtesy of SBAM Approved Partner ASE

Last Friday, a three-judge panel of the Sixth Circuit Court of Appeals in a split decision lifted the Occupational Safety and Health Administrations (OSHA) Emergency Temporary Standard (ETS) stay.

The ETS requires employers that are over 100 employees in size to require their employees be fully vaccinated or require weekly testing of unvaccinated employees along with masking in the workplace. To add to the confusion and uncertainty, being fully vaccinated may soon mean having the two-shot Pfizer or Moderna shots or the single J&J shot AND a booster. Currently OSHA and the CDC still consider the original full vaccination to be the two-shot regimen or the single shot from J&J.

The Sixth Circuit ruling to lift the stay came from a consolidation of appeals from the Fifth Circuit Court of Appeals that originally stayed implementation of the ETS back in November. The appeal was heard by a three-judge panel, and a petition for an en banc hearing was rejected.  Keep in mind that although the ETS mandate stay is lifted, the Sixth Circuit will continue to consider the merits of the ETS.

The Sixth Circuit opinion stated the Court found that OSHA had authority to promulgate an ETS that had an “immediate effect.” The judge writing for the majority stated that because the mandate does not require anybody to be vaccinated and offers the option of remaining unvaccinated while being tested and masked, it was not an enormous expansion of OSHA’s authority. The ETS authority arises when OSHA deems that “workers face a grave danger in the workplace”.

In response to the Court decision, OSHA updated its website on Saturday stating it will again implement the ETS.  It also stated it will exercise discretion with respect to the compliance dates in the original ETS. That is currently taken to mean OSHA will not issue citations for overall noncompliance before January 10th (this was the original Dec. 6, 2021 compliance requirement) and will not issue citations on the vaccination and testing standards before February 9th (this was the original January 4, 2022 vax or be tested implementation date) as long as employers are found to be “exercising reasonable, good faith efforts” to move into compliance.

OSHA’s statement reads:

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.

None of the above prevents a small employer, even ones employing less than 100 employees, from implementing a vaccination or test policy voluntarily.

ASE and other organizations are advising employers to continue to prepare for ETS compliance even as the appeals continue to move through the court system. This decision to lift the compliance stay could be overruled by the U.S. Supreme Court (SCOTUS) as many stay petitions were subsequently and immediately filed with SCOTUS challenging the Sixth Circuit Court’s decision. To add some politics into this, Justice Kavanaugh (Trump’s SCOTUS appointee) oversees the Sixth Circuit so he reportedly will determine how and when the appeals will be reviewed by SCOTUS.

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