As FOS’s November 5, 2021 client alert “OSHA Releases COVID-19 Vaccination Requirements” described, President Biden, via an Emergency Temporary Standard (ETS), previously issued a vaccine/testing mandate for private employers with 100 or more employees. As FOS’s November 16, 2021 client alert, “OSHA Vaccine Requirements Stayed in Legal Challenge” further advised, the Occupational and Safety Administration (OSHA) indicated it would not enforce the ETS until the resolution of pending and anticipated legal challenges to the ETS.
On Friday, December 17, 2021, in a two to one decision, the Sixth Circuit Court of Appeals upheld the ETS and lifted the stay against its enforcement which had been entered by the Fifth Circuit Court of Appeals. While one federal appellate court does not customarily review the decisions of other federal appellate courts, and while the Sixth Circuit’s jurisdiction does not usually cover Wisconsin, given the number of federal challenges to the ETS, the federal courts appointed the Sixth Circuit Court of Appeals to decide the nationwide validity of the ETS.
In addition to upholding OSHA’s statutory authority to regulate infectious diseases in the workplace, the court, relying on “many peer-reviewed scientific studies,” found that OSHA clearly outlined COVID-19’s danger to workplace employees. The court concluded:
“(T)he ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.”
The decision meant that employers were to comply with the ETS by January 10, 2022. However, on Saturday, December 18, 2021, OSHA stated that it would delay the ETS’s enforcement until February 9, 2022, so long as employers are “exercising reasonable, good faith efforts to come into compliance with the standard.”
OSHA likely did so in light of the multiple emergency motions to stay the decision which were filed in the U.S. Supreme Court late Friday, December 17, 2021, and additional anticipated legal filings in the Supreme Court.
If the Supreme Court decides not to hear the case, or to hear the case without staying the Sixth Circuit’s decision, the decision and the January 10, 2022 compliance date will be enforceable, at least for some time period.
FOS will continue to monitor the ETS. In the meantime, if you have any questions regarding the ETS, the creation or implementation of an ETS policy, or any other legal issue, please contact FOS for assistance with drafting or implementation of policies that comply with the ETS.
Be well. And enjoy the holidays.
