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:
- The ETS applies to employers with 100 or more employees.
- Covered employers must ensure that all employees are fully vaccinated or produce a negative COVID-19 test result on at least a weekly basis.
- 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.