Over the weekend, in a 2-1 decision, the Sixth Circuit lifted the stay of OSHA’s Emergency Temporary Standard (“ETS”) regarding mandatory employee vaccination or testing requirements. The ETS was originally issued on November 5, 2021 but was stayed by the Fifth Circuit on November 6, 2021.

In its decision to lift the stay, the Sixth Circuit determined that OSHA did not exceed its statutory authority by issuing the ETS, noting that “OSHA’s authority includes protection against infectious diseases that present a significant risk in the workplace, without regard to exposure to that same hazard in some form outside the workplace.” The Sixth Circuit also determined that OSHA sufficiently demonstrated the danger that COVID-19 poses to workers and that the ETS is necessary to protect employees from that grave danger.

Shortly after the Sixth Circuit announced its decision, OSHA updated the schedule for employers to comply with the ETS’ requirements to January 10, 2022 and February 9, 2022.

As a refresher, the primary provisions of the ETS are outlined below:

  • WHO:
    • The ETS applies to employers with 100 or more employees.
  • WHAT:
    • Covered employers must ensure that all employees are fully vaccinated or produce a negative COVID-19 test result on at least a weekly basis.
  • WHEN:
    • January 10, 2022: Employers must have a written vaccination policy and all other vaccine or test requirements in place.
    • February 9, 2022: All employees must be vaccinated or show weekly proof of a negative COVID-19 test.

Despite the Sixth Circuit’s ruling, the future of the ETS remains unclear, as it has been reported that several appeals have already been filed to the United States Supreme Court. Certain groups have asked the Supreme Court to intervene on the case as part of its “emergency docket,” which could expedite the review process. Justice Brett Kavanaugh, an appointee of President Trump, is the Justice responsible for overseeing appeals from the Sixth circuit.

Given the political messaging behind the ETS, it is possible that it will be stayed once again in the near future. In the meantime, however, employers should exercise reasonable, good faith efforts to come into compliance with the ETS by January 10th and February 9th. Feel free to reach out to Megan Bennett, Jon Scandling or any member of Frantz Ward’s labor & employment group if you have additional questions regarding the ETS, or its current state.

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Photo of Jonathan M. Scandling Jonathan M. Scandling

Jon focuses his practice on the representation of management in all aspects of labor and employment law. He provides counseling and training to clients for best practices on a wide range of human resource issues such as terminations, compliance with employment laws, workplace…

Jon focuses his practice on the representation of management in all aspects of labor and employment law. He provides counseling and training to clients for best practices on a wide range of human resource issues such as terminations, compliance with employment laws, workplace investigations, and the preparation of policies and employment agreements. Jon also assists with the implementation of arbitration agreements and policies for employers.

Jon has extensive experience in public sector labor & employment law, with much of his practice revolving around traditional labor matters. Prior to Frantz Ward, Jon worked for Cuyahoga County as an Assistant Law Director in the Labor & Employment Group. While at the County, Jon’s practice involved traditional labor matters where he represented management in a complex labor/management relationship comprised of over 37 separate bargaining units, employment litigation and general employment counseling. He appeared in both state and federal court, and represented management in State Employment Relations Board hearings, contract negotiations, grievance arbitration and various other forums. Jon also has extensive experience dealing directly with various public sector unions, ranging from deputy and correction officers to office workers and clerical employees. He also was a law clerk for the State Employment Relations Board in Columbus.

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Photo of Megan E. Bennett Megan E. Bennett

Megan focuses her practice on the representation of management in all aspects of labor and employment law. She assists in providing day-to-day counseling to employers by researching and recommending best practices for companies on human resources issues such as terminations, compliance with employment…

Megan focuses her practice on the representation of management in all aspects of labor and employment law. She assists in providing day-to-day counseling to employers by researching and recommending best practices for companies on human resources issues such as terminations, compliance with employment laws, workplace investigations, and the preparation of policies and employment agreements. Megan aids in the defense of employers in discrimination, harassment, retaliation, and various other employment-related claims before judicial bodies and administrative agencies. Megan assists clients across several industries in preparing annual affirmative action plans and defending against OFCCP audits.

During law school, Megan had hands-on experience, including serving as a Judicial Extern to the Honorable Judge Christopher Boyko of the U.S. District Court for the Northern District of Ohio, a Law Clerk for the Cuyahoga County Prosecutor’s Office, and a Legal Intern for the U.S. Department of Education, Office for Civil Rights. In addition, Megan was a Frantz Ward Summer Associate.

Prior to law school, Megan taught Kindergarten and Pre-Kindergarten in New York City through Teach for America. Megan holds a Master’s degree in Early Childhood Education from Lehman College of the City University of New York. Megan also has a Bachelor’s degree in Political Science and Communications from the University of Dayton.

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