Employers will have to wait a little longer for a decision from the Sixth Circuit as to the status of the OSHA Emergency Temporary Standard (ETS) requiring COVID-19 vaccinations or weekly testing for workers at most companies with 100 or more employees.
As outlined in our prior eAlerts, just one day after the November 5, 2021, publication of the ETS in the Federal Register, the U.S. Court of Appeals for the Fifth Circuit halted OSHA’s implementation of the ETS by issuing a stay order. Because the ETS was challenged in multiple jurisdictions, a multi-circuit lottery was held to determine which Circuit would hear the consolidated challenges. On November 16, 2021, the U.S. Court of Appeals for the Sixth Circuit won the lottery. For more details on these initial procedural events, our relevant eAlerts remain available: “Fifth Circuit Stays OSHA Standard Mandating Employee Vaccination or Testing,” and “OSHA ETS Challenges Transferred to the Sixth Circuit Court.”
More recently, OSHA asked the Sixth Circuit to dissolve the stay issued by the Fifth Circuit. The Sixth Circuit gave ETS challengers until December 7, 2021, to file responses in support of keeping the stay in place. Supporters of dissolving the stay would then have until December 10, 2021, to reply. OSHA opposed the briefing schedule and asked the Sixth Circuit to move faster. Last Friday, the Sixth Circuit declined OSHA’s motion.
In light of the Sixth Circuit’s order on Friday, it is unlikely that there will be any decisions this week that will clarify whether the ETS will go into effect. If anything, the court’s ruling suggests that the Sixth Circuit is likely to keep the stay in place until it has ruled on the various challenges to the ETS because the first major compliance deadline is December 6, 2021 (today). Specifically, the ETS gave covered employers until December 6, 2021, to comply with all requirements except implementing a testing program. The stayed December 6 requirements include establishing a policy on vaccination, determining the vaccination status of employees, providing leave for employee vaccination and recovery, masking for unvaccinated employees and other measures. The ETS provides that any testing program must also be in place by January 4, 2022. More details on the requirements of the ETS are available in our eAlert here.
Clearly, the status of the ETS remains in flux, and we will continue to keep you updated on any developments. In the meantime, covered employers should reach out to their Warner attorney regarding how to proceed with preparations in case the Sixth Circuit lifts the stay or upholds the ETS.