OSHA COVID-19 Vaccine or Testing Requirement For Employers with 100 or More Employees Returns
On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Occupational Safety & Health Administration (OSHA)’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which is applicable to private employers with at least 100 employees. This means that the ETS is no longer on hold.
OSHA issued a statement on Saturday, December 18th, expressing agreement with the Sixth Circuit and offering employers the following enforcement extensions:
…To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance 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… (emphasis added)
Employers should resume preparations to achieve compliance by the January 10th and February 9th deadlines, but also take note that this is not the end of litigation battle. Immediately in response to the Sixth Circuit dissolution of the stay, an Emergency Application of Twenty-Six Business Associations for Immediate Stay of Agency Action Pending Disposition of Petition for Review (the “Application”) was filed in the Supreme Court of the United States. The Application requests either “an immediate stay of the effective date” of OSHA’s ETS, or a request to treat the Application “as both a motion to stay and a petition for writ of certiorari before judgment; stay the ETS pending resolution of Applicants’ petition for review; and set the case for expedited plenary review.” The Application is addressed to Justice Brett Kavanaugh, the Justice assigned to the Sixth Circuit.
The Supreme Court has since ordered that the federal government file, by December 30th , any briefs in response to the request to stay OSHA’s ETS. Thereafter, Justice Kavanaugh may act on the Application alone or refer it to the full Court for consideration.
