Stay of OSHA vaccine-or-test rule dissolved; enforcement to begin on January 10

As discussed in our prior client alert, on November 5, the Occupational Safety and Health Administration (OSHA) published its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which requires private employers with 100 or more employees to either mandate COVID-19 vaccination or weekly viral tests. On November 6, almost immediately upon the ETS’s publication, the US Court of Appeals for the Fifth Circuit granted a stay of the ETS citing “grave statutory and constitutional” issues with the rule and subsequently issued an order extending its initial stay.  However, on December 17, the US Court of Appeals for the Sixth Circuit breathed new life into the ETS by dissolving the Fifth Circuit’s stay.

Shortly after the Sixth Circuit’s order, OSHA released a statement providing employers who exercise reasonable, good-faith efforts to comply with the ETS until January 10 for all requirements other than the ETS testing requirements, for which the compliance deadline is now February 9, 2022. OSHA will generally not issue citations for noncompliance before these deadlines.

Below we discuss additional background and developments in this evolving matter.

Consolidation and the Sixth Circuit’s decision

The various legal challenges to the ETS, pending in almost every circuit court of appeals, were consolidated into a single case, which was randomly assigned for review to the Sixth Circuit (In Re: MCP No. 165, OSHA Interim Final Rule: COVID-19 Vaccination and Testing; Emergency Temporary Standard 86 Fed. Reg. 16402, No. 21-07000).

Since the legal challenges were consolidated before the Sixth Circuit, there has been considerable activity, including motions to transfer to another circuit, motions to lift the Fifth Circuit’s stay, motions for an initial en banc panel proceeding and a motion to expedite the court’s briefing schedule to accelerate a final decision on the matter. The Sixth Circuit denied requests to transfer to another circuit and to expedite the briefing schedule.

However, late on December 17, in a 2-1 decision, the Sixth Circuit granted a request to dissolve the Fifth Circuit’s stay of the ETS, stating that the harm caused by keeping the ETS frozen outweighed the damage that would stem from letting it go into effect. The Sixth Circuit also opined that OSHA clearly has authority to regulate viruses and infectious diseases, including those that “co-exist in the workplace and in society,” and rejected the arguments challenging the ETS’s constitutionality.

Challenges to the Sixth Circuit decision

The Sixth Circuit’s decision regarding the challenges to the ETS, regardless of the nature thereof, was destined to trigger an appeal to the US Supreme Court. In fact, multiple states, such as Ohio and Georgia, along with various organizations, advocacy groups and other opponents of the ETS, petitioned the Supreme Court to block the OSHA rule within hours of the Sixth Circuit’s decision to dissolve the stay and allow the ETS to take effect. Similar petitions are expected in the coming days.

However, at this time, we cannot predict whether the Supreme Court will agree to take up the application addressing the ETS or to grant a stay pending review of the application. Unfortunately, the status of similar mandates currently provides little insight as to what the Supreme Court may decide. Specifically, the federal vaccine mandate for federal contractors under Executive Order 14042 remains stayed since the US District Court for the Southern District of Georgia issued a nationwide preliminary injunction against its enforcement on December 7, 2021, which is still in effect.

The similar vaccine mandate for Centers for Medicare and Medicaid (CMS)-regulated healthcare facilities was initially stayed nationwide by a federal judge in Louisiana, before the ruling was reversed and the stay was limited to the approximately 24 states that sued to stop enforcement of the mandate. An application for review of this decision has been filed with the Supreme Court, but the Supreme Court has rendered no decision on the application at this time. Notably, the issues related to the CMS vaccine mandate are slightly different than those facing the ETS.

OSHA seeks to provide clarity regarding the ETS following the Sixth Circuit decision

Over the weekend, OSHA issued a statement regarding its enforcement efforts with respect to the compliance dates in the ETS in light of the Sixth Circuit decision. Specifically, OSHA noted that it is exercising enforcement discretion with respect to the compliance dates of the ETS. Moreover, to provide employers with adequate time to come into compliance, OSHA will not issue citations for noncompliance with any ETS requirements before January 10, 2022 and will not issue citations for noncompliance with the ETS testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good-faith efforts to come into compliance with the standard.

While OSHA did not specify what qualifies as a reasonable, good-faith effort, taking no action towards compliance would likely prove insufficient and could result in citations before the new compliance deadlines. OSHA also reiterated that the comment period for the ETS will remain open until January 19, 2022, as the ETS acts as a proposal for a permanent standard.

Next steps

While it remains to be seen whether the Supreme Court will decide to stay the ETS again, employers are encouraged to continue to plan for implementation of the ETS based on OSHA’s revised timeline. For a refresher on the ETS’s requirements, please refer to our prior client alert.

If you have any questions regarding this development or other COVID-19-related requirements, please contact the authors, your DLA Piper relationship attorney or the DLA Piper Employment group at CoronavirusEmployment@dlapiper.com.

UPDATE 12/22: The US Supreme Court gave the government until December 30 to respond to applications for emergency stay of the OSHA ETS and indicated that it will take up the OSHA ETS case on January 7, along with the separate CMS vaccine mandate case for healthcare workers. This means there will be minimal time between a Supreme Court decision to stay the OSHA ETS and the current January 10 compliance deadline. As such, prudent employers subject to the OSHA ETS will not wait for a decision and will take steps now towards compliance with the OSHA ETS.