To: MMA Employment & Workforce Policy Committee

Subject: Sixth Circuit US Court of Appeals Upholds OSHA COVID-19 Vaccine & Testing Order

The United States Court of Appeals for the 6th Circuit has dissolved the stay that prevented the United States Occupational Safety and Health Administration (OSHA) from implementing a rule requiring employers to mandate their employees be fully vaccinated against COVID-19 or submit a weekly negative COVID test.

The 6th Circuit’s ruling was issued on a 2-1 vote with Circuit Judges Jane Stranch and Julia Gibbons deciding in favor of OSHA and Circuit Judge Joan Larsen dissenting. The majority opinion stated that “based on the wealth of information” in OSHA’s 153-page preamble explaining why OSHA issued its COVID-19 emergency temporary standard (ETS) that “it is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace.” They said further, “OSHA has demonstrated the pervasive danger that COVID-19 poses to workers – unvaccinated workers in particular – in their workplaces.” The decision overrules the November stay issued by the 5th Circuit Court of Appeals.

Earlier in the week, the entire 6th Circuit voted 8-8 on a motion seeking all judges sit en banc to hearing the challenge to the OSHA ETS. This allowed for a three-judge panel to speak for the entire Circuit.

The ETS applies to businesses with at least 100 employees. Those employees who are not fully vaccinated will be required to wear face masks and be subject to weekly COVID-19 tests. There are exceptions in the ETS for those who work outdoors and those who work only at home.

OSHA put out the following statement after the 6th Circuit’s ruling:

OSHA is gratified the US Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. 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. OSHA will work closely with the regulated community to provide compliance assistance.

While this decision is sure to be appealed to the United States Supreme Court, MMA members should continue to exercise prudence and prepare to adjust their internal policies to comply with the OSHA ETS until the Court reaches a final decision.

To read the 6th Circuit’s decision, visit the Court’s website.

To read OSHA’s statement and information about the ETS, visit OSHA’s website.

For more information, please contact me at 517-487-8511 or worthams@mimfg.org.

David

David Quinton Worthams (Dave) | Director of Human Resource Policy | Michigan Manufacturers Association
620 S. Capitol Ave • Lansing Michigan • 48933
Tel: 517.487.8511 | Fax: 517.853.3311 | Email: worthams@mimfg.org