OSHA’s COVID-19 Vaccine or Test Mandate Is BACK in Play… For Now

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

On Friday, December 17, 2021, the federal Sixth Circuit Court of Appeals granted an emergency motion to dissolve the stay of the federal OSHA COVID-19 vaccine or test mandate for large employers.

Background.

On November 5, 2021, OSHA issued an Emergency Temporary Standard (ETS or the standard) to protect the health of employees by mitigating the spread of this historically unprecedented virus in the workplace. The ETS requires that employees who work for an employer with 100+ employees, as well as certain government employees, to either obtain a COVID-19 vaccine, or undergo regular weekly tests. The next day, the U.S. Court of Appeals for the Fifth Circuit stayed the ETS pending judicial review, and it renewed that decision in an opinion issued on November 12. Multiple petitions challenging the ETS—filed in Circuit Courts across the nation—were consolidated into the Sixth Circuit to be decided together.

Sixth Circuit’s Decision.

The Court said that the COVID-19 pandemic has wreaked havoc across America, leading to the loss of over 800,000 lives, shutting down workplaces and jobs across the country, and threatening our economy. After analyzing the stay under applicable legal principles, the Court said that the ETS is an important step in curtailing the transmission of a deadly virus that has brought the U.S. healthcare system to its knees, forced businesses to shut down for months on end and cost hundreds of thousands of workers their jobs. The Court said that in a conservative estimate, OSHA finds that the ETS will “save over 6,500 worker lives and prevent over 250,000 hospitalizations” in just six months. The Court held that a stay would risk compromising these numbers, indisputably a significant injury to the public. Thus, it found that the harm to the Government and the public interest outweighs any irreparable injury to the individual petitioners who sought the stay, particularly where they have not shown a likelihood of success on the merits.

The Court’s full opinion can be obtained here.

OSHA’S Response To The Lift Of The Stay.

On Saturday, December 18, 2021, OSHA issued a statement declaring that it was gratified that the stay has been dissolved so that the agency can move forward with implementing a vital workplace health standard.  OSHA made clear that to account for any uncertainty created by the stay, the agency will exercise enforcement discretion with respect to compliance dates of the ETS.  As such, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022 and will not issue citations for noncompliance with the ETS’s testing requirements before February 9, 2022, so long as employers are exercising reasonable, good faith efforts to come into compliance with the standard.

Further Challenges.

The petitioners who challenged the OSHA ETS have indicated that they will appeal the Sixth Circuit’s decision to dissolve the stay.  As Texas Attorney General, Ken Paxton,  stated in-part in a Friday tweet, “I will immediately take this to SCOTUS to seek a reversal.”

What Covered Employers Should Do.

Without any certainty as to whether the stay will be reinstated or not, covered employers should begin to take steps to comply with the OSHA ETS.  The OSHA Fact Sheet explains that the ETS requires covered employers to take the following steps:

  • Develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
  • Support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.
  • Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
  • Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
  • Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return to work criteria are met.
  • Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
  • Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
  • Make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative.

More information about, and tools for compliance with, the OSHA COVID-19 Vaccination or Testing ETS can be obtained from OSHA’s website at: COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov)