By Sally A. Piefer

November 23, 2021

As we previously reported, on November 4th, OSHA released its emergency temporary standard (“ETS”) which requires employers with 100 or more employees to develop, implement, and enforce a written mandatory COVID-19 vaccination policy. Alternatively, covered employers may adopt a written policy requiring employees to either choose to be vaccinated or undergo regular testing and wear a face covering at work.

The ETS gave employers until December 5, 2021 to do the following:

  • Develop a written vaccination and/or testing policy.
  • Determine which employees are vaccinated and collect documentation from employees who are vaccinated.
  • Develop educational materials to provide to employees covering (i) requirements of the ETS and its workplace policies; (ii) a copy of the CDC’s Key Things to Know About COVID-19 Vaccines; (iii) information prohibiting retaliation and discrimination; and (iv) information discussing criminal penalties for intentionally providing false information or documentation.

The testing and masking requirements were set to be implemented on January 4, 2022.

Almost immediately, a number of lawsuits were filed by employer groups across the nation seeking to invalidate the ETS, and shortly thereafter a number of labor unions and employee groups began filing similar lawsuits in employee friendly jurisdictions. All of those petitions have been consolidated in and will be decided by the Sixth Circuit Court of Appeals. Before the Sixth Circuit assumed jurisdiction of the cases, the Fifth Circuit Court of Appeals, a notably employer-friendly jurisdiction (or court), granted a Motion to Stay Enforcement of the ETS, finding the ETS overbroad. Several days later, OSHA posted on its website that it was suspending enforcement of the ETS “pending further developments in the litigation.”

This morning, the Biden Administration filed an Emergency Motion asking the Sixth Circuit to Dissolve the Stay issued by the Fifth Circuit. While it is still too soon to speculate how the Sixth Circuit will rule in response to the current Motion, many clients are asking what they should do since the ETS appears to be in legal limbo.

What should employers do while the ETS is in limbo? Even though the ETS has presently been paused, employers are encouraged to continue with their efforts to implement the ETS in the event the Sixth Circuit lifts the Stay. In such event, it is presently unclear how quickly OSHA may try to enforce the December 5 deadline. In addition, it would be wise for employers to keep employees informed about the process so that if the ETS is enforced, an employer can quickly move to get into compliance.

Employers should also be aware that the current proceedings in the Sixth Circuit do not impact the Executive Order 14042 mandating vaccines for certain covered government contractors and subcontractors, the vaccine mandate from the Centers for Medicare & Medicaid Services (CMS) for healthcare employers, or any state or local vaccination mandate or testing requirements.

If you have questions about this new development or about your obligations under any vaccine mandate or testing requirements, please contact Attorney Sally Piefer or the Lindner & Marsack attorney with whom you regularly work. We will continue proving updates as we learn more about new developments and how they will impact your business.