On Friday, December 17, 2021, the United States Court of Appeals for the Sixth Circuit lifted the stay on OSHA’s Emergency Temporary Standard that mandates employers with 100 or more employees to require unvaccinated workers to wear a mask on the job and test for COVID-19 weekly (the “ETS”).
In dissolving the stay, Judge Jane B. Stranch wrote that “COVID-19 has continued to spread, mutate, kill, and block the safe return of American workers to their jobs. To protect workers, OSHA can and must be able to respond to dangers as they evolve.” In its 37-page Order, the Court held that: (1) “there is little likelihood of success for the challenges against” the ETS; and (2) the parties challenging the ETS did not demonstrate that they would suffer an irreparable injury if the stay was lifted; in contrast, the “costs of delaying implementation of the ETS are comparatively high” as OSHA conservatively estimated that the ETS will “save over 6,500 worker lives and prevent over 250,000 hospitalizations” in just six months.
Accordingly, the ETS is now back in effect and employers with 100 or more employees must comply with its requirements, which we previously discussed here.
However, the Department of Labor announced on Saturday, December 18 that OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. Accordingly, OSHA will not issue citations for noncompliance with any of the requirements of the ETS (apart from the testing requirements) before January 10, and OSHA will not issue citations for noncompliance with the ETS’ testing requirements before February 9, so long as an employer is exercising “reasonable, good faith efforts to come into compliance with the standard.”
The parties challenging the ETS have reportedly filed an application with the United States Supreme Court to reinstate the stay.
Importantly, employers may choose to implement a vaccination policy, including a vaccine mandate (providing for religious and medical exemptions), regardless of the ultimate outcome of the ETS-related litigation.
If you have any questions relating to the OSHA ETS or any other employment-related matter, please contact any member of our Labor, Employment and Employee Benefits Team.