OSHA's Employer Vaccine Mandate Reinstated by 6th Circuit

Author: David B. Weisenfeld

December 20, 2021

The Biden administration's nationwide vaccine mandate for large employers overcame a major hurdle Friday night when the 6th Circuit Court of Appeals ruled its Emergency Temporary Standard (ETS) could go forward. The ETS requires employers with 100 or more employees to ensure their employees are fully vaccinated against COVID-19 or face weekly testing if they are not. It will cover an estimated 84 million employees.

In a 2-1 ruling, the Cincinnati-based appellate court lifted a stay issued by another appellate court in early November that had blocked the ETS from taking effect.

The Occupational Safety and Health Administration (OSHA) has wide discretion to implement the best possible solution to ensure the health and safety of all workers, wrote Circuit Judge Jane Stranch.

"OSHA may lean on the side of overprotection rather than underprotection" with the ETS, she noted because the agency has shown that COVID-19 poses a "pervasive danger" to workers and their workplaces. Circuit Judge Stranch also dismissed the plaintiffs' claims of "irreparable harm" if the ETS were to be enforced as "entirely speculative."

OSHA has estimated that the ETS would save more than 6,500 worker lives and prevent more than 250,000 hospitalizations in the next six months.

What's Next?

In the hours following the 6th Circuit's ruling, the Department of Labor (DOL) provided employers with a bit of flexibility by announcing that OSHA will not issue any citations for noncompliance with the ETS before January 10, and that unvaccinated workers will not face regular testing for the coronavirus until February 9, 2022, so long as an employer exercises reasonable, good-faith efforts to come into compliance with the ETS. The original deadline had been January 4.

Critics of the Biden administration's ETS - which include more than 20 Republican-led states and some business groups - have already filed a petition to the US Supreme Court seeking to overturn the 6th Circuit's ruling. The case also could be appealed to the full 6th Circuit since a three-judge panel heard the case.

Many observers speculate that the Supreme Court will intervene to address this case as well as another related mandate. The Department of Justice asked the Court last week to let the Biden administration fully implement a vaccine mandate for health care workers at providers that participate in Medicare or Medicaid. One federal appellate court had upheld the mandate, while two others cast doubt on its legality.

Testing and Face Coverings

As a reminder, the ETS requires that employees who are not fully vaccinated must be tested for COVID-19 at least once every seven days and provide documentation of the test results to the employer. If an employee does not report to a workplace where other individuals are present for a period of seven or more days - for example, while working from home temporarily - the individual must be tested within seven days prior to returning to the workplace.

If an unvaccinated employee fails to provide documentation of a COVID-19 test result as required, the employee must be removed from the workplace until a test result is provided.

Employees who are not fully vaccinated must wear a face covering indoors and when occupying a vehicle with another person for work purposes, except in the following situations:

• When alone in a room with floor-to-ceiling walls and a closed door;
• For a limited time while eating or drinking or for identification purposes to comply with safety and security requirements;
• When wearing a respirator or facemask; or
• If the employer can demonstrate that the use of face coverings is infeasible or creates a greater hazard.

The DOL said yesterday that its ETS rule does not currently include booster shots, though it strongly encourages them. However, that may well change as the Centers for Disease Control and Prevention could change its definition of what it means to be fully vaccinated.

In an effort to increase COVID-19 vaccination rates, several states and cities have initiated their own requirements that certain workers be fully vaccinated by a specified date.