Just one month ago, OSHA suspended its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), after the Fifth Circuit entered a stay against it. The ETS requires employers with 100 or more employees to establish all employees are vaccinated or require mandatory masking and weekly testing. On December 17, 2021, three Sixth Circuit Court of Appeals judges issued an opinion lifting the stay. On December 18, 2021, the United States Department of Labor issued a news release indicating that OSHA will begin enforcement of the ETS on January 10, 2022.

This latest legal twist leaves employers once again scrambling to implement the required policies and protocols or face OSHA penalties.  Meanwhile, the decision is subject to review by both the full Sixth Circuit Court of Appeals and likely, the Supreme Court.  Either review could result in another reversal.

In November, the Fifth Circuit found numerous reasons for issuing a stay of the ETS including it was “fatally flawed on its own terms,” and because it “grossly exceeds” OSHA’s statutory authority.  In contrast, the Sixth Circuit found that the private employer petitioners who originally moved for an injunction halting implementation of the ETS are not likely to succeed on the merits of their claim.  The Sixth Circuit decided that COVID-19 is an example of a “harmful agent” and the OSH Act gives OSHA the authority to protect workers from infectious diseases even if they are not unique to the workplace.  The Sixth Circuit also rejected the Fifth Circuit’s conclusion that the major questions doctrine prevented OSHA from exercising such broad power.  Instead, the Sixth Circuit concluded that the ETS was well within the authority granted to OSHA, which has regulated workplace health, including diseases, for decades.  The Sixth Circuit’s opinion disagrees point by point with virtually all of the Fifth Circuit’s conclusions for implementing the stay.

Back to the Mandate

Private Employers with more than 100 employees should review the ETS and take steps, if they have not already done so, to meet the January 10, 2022 compliance date.  The following is a summary of some of the key features:

  • All employees are counted for the 100 employee threshold, whether full or part-time, onsite or remote.
  • Violators are subject to a fine of up to $13,653 for a single violation or up to $136,532 for a willful violation.
  • Employers have a choice: they must either establish all employees are fully vaccinated or require that all employees be tested weekly and wear face coverings. An employer cannot combine vaccinations with facemasks and testing, but must choose one protocol or the other.
  • Employers must have a written mandatory vaccination or weekly testing/face covering policy.
  • Only employees that have a disability or a sincerely held religious belief, practice, or observance that conflict with the vaccination requirement are exempt.

Bottom Line

The sharp difference between the courts’ reviews of the ETS are symbolic of the differences in the views of Americans generally regarding mandatory vaccinations.  Unfortunately, it does little to quell the uncertainty COVID has brought to many facets of our lives.  Because there is no guarantee of if or when a higher court will conduct a further review, employers should determine the best means for complying with the mandate.  If you need help in understanding how the mandate affects your business or how best to comply, please reach out.