On Friday night, December 17, 2021, the Sixth Circuit Court of Appeals lifted the legal “stay” on the OSHA emergency temporary standard (ETS) requiring employers with 100+ employees to ensure in-person workers are either: (1) fully vaccinated against COVID-19 or (2) test weekly and wear masks when not in a floor-to-ceiling isolated space.

In a 2-1 decision, a 3-judge panel ruled that OSHA has clear authority to regulate infectious diseases and that OSHA’s authority is not limited to “hard hats and safety goggles.” The Sixth Circuit opinion states that COVID-19 continues to “spread, mutate, kill, and block the safe return of American workers to their jobs,” making it “difficult to imagine more OSHA could do to justify its findings that workers face a grave danger in the workplace” if unvaccinated against COVID-19.

Within hours, numerous business groups filed emergency appeals to the United States Supreme Court requesting reimplementation of the stay pending the Supreme Court’s review.

OSHA promptly updated its website to state that employers now have until January 10, 2022 to survey the workforce regarding vaccination status, implement the required policy, and implement strict mask requirements for unvaccinated individuals. OSHA further clarified that enforcement of the weekly testing requirements (impacting unvaccinated employees who work onsite) will begin on February 9, 2022. 

Meanwhile, also on Friday, December 17, 2021, the Eleventh Circuit Court of Appeals upheld a nationwide injunction (i.e., stay) of the vaccine mandate applicable to federal contractors and subcontractors. The federal contractor mandate requires workers under federal contracts or subcontracts to be: (1) fully vaccinated or (2) provide proof of a medical or religious exemption. The Eleventh Circuit intends to hear the merits of the federal contractor mandate in January 2022, meaning the stay could remain in effect until February 2022 unless the U.S. Supreme Court intervenes due to emergency petitions filed by the federal government.

What happens next?

An employer can get whiplash trying to keep up with the legal challenges and court orders now winding their way to the U.S. Supreme Court.

Unfortunately, we don’t know what the U.S. Supreme Court will do or when. Here are the two paths the Supreme Court could take: 

  • The high court could decline to accept the appeals from the Sixth Circuit, which would leave the Sixth Circuit’s decision (dissolving the stay; affirming the OSHA ETS) in place. If this happens, employers have 3 weeks from today (Monday, December 19, 2021) to comply with most of the OSHA ETS requirements, and less than 2 months to develop and fully implement a weekly testing program for onsite workers who are unvaccinated. 

 

  • The high court could accept the appeals from the Sixth Circuit, meaning the Supreme Court would issue its own decision at some point in the near or distant future. If this happens, the Supreme Court may or may not implement a new stay of the OSHA ETS while hearing arguments and drafting its opinion.

On the federal contractor front, the Supreme Court could accept the emergency appeals from the federal government requesting dissolution of the Eleventh Circuit’s injunction. Or the Supreme Court could allow the Eleventh Circuit’s briefing schedule to play out, meaning the federal contractor vaccine-or-exemption requirements could remain on hold through the end of January or February 2022.

What’s an employer to do?

OSHA ETS: As of the moment of this publication, the OSHA ETS (vaccine-or-test) is ON. This means employers should rapidly (and confidentially) obtain employees’ vaccination status (including copies of CDC Vaccination Cards), draft an OSHA ETS policy, plan a weekly testing protocol for in-office workers, implement stricter mask requirements for unvaccinated workers, and draft trainings regarding relevant policies and procedures.

Federal Contractor Vaccine Mandate: The federal contractor vaccine mandate—for the moment—is STAYED. This means employers who are federal contractors should continue confidentially gathering vaccination status and evaluating medical/religious exemption requests of federal contract workers. However, employers are not required to terminate or transfer unvaccinated federal contract workers who do not have an applicable medical/religious exemption.  

Need help understanding the rapidly changing legal landscape regarding COVID-19 vaccination mandates? Don’t worry, we’re here to help!

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