UPDATE: Sixth Circuit Panel Lifts Fifth Circuit’s Stay on OSHA’s Vaccination and Testing Emergency Temporary Standard

Just before 7 p.m. on Friday, December 17, 2021, a divided panel of the Sixth Circuit dissolved the Stay issued by the Fifth Circuit, which prevented the Occupational Safety and Health Administration (“OSHA”) from enforcing its Vaccination and Testing Emergency Temporary Standard (“ETS”) while the regulation is challenged in the federal courts. With the Stay lifted, OSHA will move forward with requiring private employers with 100 or more employees to establish, implement, and enforce a written mandatory vaccination or testing policy.

The Sixth Circuit panel found that OSHA was authorized to issue regulations, like the ETS, to address “grave dangers” to workers and that the challengers did not establish a likelihood of success on the merits to support the Stay.  Accordingly, unless the U.S. Supreme Court intervenes, OSHA can require covered employers to comply with the ETS, while waiting for a final decision from the Courts.

OSHA has adjusted its compliance dates to give employers additional time to comply with the ETS. Covered employers now have until January 10, 2022, to create a vaccination policy, determine the vaccination status of its employees, and enforce a mask mandate for unvaccinated employees. OSHA also will not issue citations for noncompliance as it relates to the ETS’s weekly testing requirement for unvaccinated employees before February 9, 2022.

Within about an hour after the Sixth Circuit decision, parties challenging the ETS filed emergency appeals to the U.S. Supreme Court. Justice Kavanaugh, who is assigned to hear petitions from the Sixth Circuit, will decide whether to again stay the ETS.

In the meantime, covered employers should continue in their efforts to create policies and procedures to comply with the ETS. While OSHA extended the compliance deadlines due to the uncertainty created by the Stay, OSHA made clear that it expects employers to exercise reasonable, good faith efforts in creating vaccination and testing policies.

For questions about this alert, please contact the authors and the Steptoe & Johnson Labor & Employment Team.