OSHA Vaccinate or Test ETS Still Up for Argument

On December 17, 2021, a three-judge panel of the Sixth Circuit Court of Appeals (encompassing Ohio, Michigan, Tennessee, and Kentucky) dissolved the stay of OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). Quickly afterward, OSHA posted new compliance dates on its website. Covered employers must now comply with the provisions of the ETS by January 10, 2022. If an employer decides to permit its employees to test instead of receiving a vaccine, then testing of unvaccinated employees must begin on or before February 9, 2022.

The Decision

Several states, various employers, trade associations, and religious groups filed challenges to the ETS in federal courts across the county. Before rending a decision, the Fifth Circuit Court of Appeals issued an injunction staying the ETS. After the Fifth Circuit’s decision, the challenges were consolidated before the Sixth Circuit Court of Appeals. 

On November 23, 2021, OSHA filed a motion asking the Sixth Circuit to lift the stay issued by the Fifth Circuit. A three-judge panel of the Sixth Circuit considered OSHA’s motion, and the majority ultimately decided that regulating an “agent that causes bodily harm”—including a virus—is squarely within OSHA’s authority. The majority also noted that OSHA has regulated infectious diseases, including protecting employees from exposure to HIV, hepatitis B, and hepatitis C through the previous standards.

Concerning COVID-19, the majority wrote, “Congress expressly included funding for OSHA in the American Rescue Plan ‘to carry out COVID-19 related worker protection activities.’”

Given its finding that Congress had expressly authorized OSHA to issue a standard, the majority quickly dispatched the plaintiffs’ constitutional arguments. According to the majority, Congress explicitly authorized OSHA’s issuance of the ETS, and it is “not an enormous expansion of its regulatory authority.”

The majority declined to second-guess OSHA’s finding that COVID-19 constitutes an “emergency” that poses a “grave danger.” Similarly, the majority held OSHA had adequately explained its reasoning in limiting coverage of the ETS to employers with 100 or more employees: larger employers have the resources to implement the standard, the “coverage threshold is sufficiently expansive” to curb COVID-19 transmission rates, and the ETS “‘will reach the largest facilities, where the most deadly outbreaks of COVID-19 can occur.’”

OSHA’s Response

On December 17, 2021, OSHA posted a statement to its website saying that the agency was “gratified” by the Sixth Circuit’s decision, which allowed OSHA to “once again implement this vital workplace health standard.” OSHA also amended the compliance dates for the ETS as follows:

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion for the compliance dates of the ETS. Because of the short notice, OSHA will not issue citations for non-compliance with any requirements of the ETS before January 10. Additionally, OSHA will not issue citations for non-compliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

What Are Employers Required to Do?

The ETS requires covered employers with 100 or more employees to determine the vaccination status of each employee and keep records related to vaccination status, provide specific information about vaccines, and develop and implement written policies describing the requirements concerning vaccinations and testing. Employers must now complete those steps by January 10, 2022. The ETS allows covered employers to permit employees to undergo weekly testing rather than be vaccinated. If employers take that option, weekly testing of unvaccinated employees must begin on or before February 9, 2022.

What Happens Next?

Shortly after the court issued the decision, multiple plaintiffs filed emergency applications with the Supreme Court of the United States for an immediate stay of the ETS. Although it is always difficult to predict how quickly a ruling might come, the Supreme Court will most likely take action in advance of January 10, 2022, to give employers some certainty.