On December 17, the 6th Circuit Court of Appeals voted 2–1 to dissolve the 5th Circuit’s stay on OSHA’s Emergency Temporary Standard (ETS).
This reversal is effective nationwide and, once again, provides OSHA with the authority to move forward with implementation of vaccination mandates or weekly testing for private employers with 100 or more employees.
The reasons provided for the decision include (as stated by the Court):
- The ETS helps to protect workers against infectious diseases; it will be an effective way to do that, and it is within the scope of OSHA’s authority to implement an order as widespread as the ETS.
- OSHA does have the authority to issue an order that could have “vast economic and political significance.” The Court further stated that OSHA’s ETS is in line with prior regulatory actions of the past.
- The timing of the ETS is not what defines an emergency situation, rather the need of responses such as an ETS. The fact that the ETS was not issued at the start of the pandemic is not indicative that the severity of the pandemic has changed.
- The ETS does not violate the Commerce Clause of the Constitution and it is not the sole responsibility of state police to address situations of widespread infectious disease.
- The petitioners could not show irreparable harm, because the ETS includes options for employers who do not wish to implement the mandate. Options include masking and testing and seeking exemptions or accommodations.
- Delaying the implementation of the ETS puts employees and the general public at risk of further exposure and spread of the COVID-19 virus and its variants.
What does this mean for employers?
Employers should plan to move forward with implementing the ETS. This requires employers to gather information on which employees are and are not vaccinated and includes collecting documentation of vaccination from those who are. It also includes preparing to test any employee who has not been fully vaccinated or has not provided information on vaccination status.
Have the compliance dates changed?
OSHA has provided an extension for companies to become compliant with the ETS and to account for any uncertainty created during the stay period.
- Citations will not be issued to companies for noncompliance with any of the requirements of the ETS (determining who is and is not vaccinated, requiring unvaccinated employees to wear a mask, removing those who have been exposed or have symptoms from the workplace, and having policies in place and communicating them to employees) before January 10, 2022.
- Citations will not be issued to companies for noncompliance with the testing requirements of the ETS prior to February 9, 2022, as long as the employer is exercising reasonable, good faith efforts to come into compliance with the standards.
Is this the final decision on the ETS?
Several emergency applications were immediately filed with the Supreme Court to stay the most recent decision, and it is expected that a decision will be made quickly, although the extension of compliance dates by OSHA reduces the pressure. It is not known, at this time, if the decision made by the 6th Circuit Court will be appealed to the entire Supreme Court or if the presiding Supreme Court Judge, Justice Kavanaugh, will make the decision on his own.
This situation continues to evolve, and MRA will continue to follow developments of the injunctions to provide further information as it becomes available.