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OSHA Wastes No Time To Issue Statement After Revival Of Vaccinate-Or-Test Mandate

It’s back on… at least for now. The U.S. Court of Appeals for the Sixth Circuit has granted the Biden Administration’s request to dissolve the Fifth Circuit’s nationwide stay on OSHA’s vaccinate-or-test Emergency Temporary Standard (“ETS”) mandate for employers with 100+ employees. In a 2-to-1 decision, the majority stated that “the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.” (A stark contrast to the Fifth Circuit’s language that the ETS presented “grave statutory and constitutional issues” when it issued the now-defunct stay).

Meanwhile, OSHA is not wasting any time. Shortly after the Sixth Circuit’s decision, OSHA issued a news release which confirms that it is reinstating implementation of the ETS. With no court order blocking the ETS, OSHA is free to do so. Because of confusion from the stay, however, OSHA is giving employers a grace period until it issues citations for noncompliance: employers now have until January 10, 2022, to comply with most of the ETS requirements and until February 9, 2022, to comply with the vaccination and testing requirements, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

But it’s not the end of the road for ETS challengers just yet. Immediately after the Sixth Circuit’s decision, a petition was filed to the U.S. Supreme Court for an emergency stay of the ETS. As evidenced by the whiplash employers have suffered from inconsistent decisions on the ETS (not to mention the patchwork of decisions surrounding the other federal mandates that we have updated for you below), we cannot predict when or how the U.S. Supreme Court will decide on the ETS.

Thus, employers covered by the ETS should move ahead with COVID-19 programs that comply with the ETS in time for the January 10 and February 9 deadlines. In light of OSHA’s requirement that employers exercise a reasonable, good faith effort to come into compliance with the ETS during the grace period, a written COVID-19 policy will be of value. If employers cannot comply with the new deadlines (e.g., testing supply shortage, etc.), it is also likely that a company’s good faith would be evaluated by OSHA prior to any citation.  

As outlined in our previous alert (OSHA Releases Vaccination And Testing Mandate For Employers With 100+ Employees), McGrath North’s Labor and Employment Group can assist in developing such policies and programs, including drafting a written policy, surveying the vaccination status of your workforce, working through religious or disability-related accommodation requests, and any other questions that may arise.

Additional Vaccine Mandate Updates

There have also been significant updates to the federal contractor and healthcare worker mandates that are not affected by the Sixth Circuit’s revival of the OSHA ETS.

The vaccine mandate for federal contractors is currently stayed nationwide. The Eleventh Circuit recently refused to dissolve a nationwide stay issued by a federal judge in Georgia. The Eleventh Circuit is set to hear further arguments into late January, and an emergency appeal to the U.S. Supreme Court is also possible. The Safer Federal Workforce Task Force has stated that the Government will not enforce a clause implementing a vaccine mandate in a location “subject to a court order prohibiting the application of requirements pursuant to the [federal contractor vaccine mandate] Executive Order.”  Of note, this does not affect federal agency COVID-19 workplace safety protocols for federal buildings and federally controlled facilities. Contractor employees working onsite in those buildings and facilities must continue to follow federal agency workplace safety protocols when working onsite.

The vaccine mandate for healthcare facilities is currently blocked in twenty-five (25) states. The Fifth Circuit refused to enforce a Louisiana federal judge’s nationwide ban of the Centers for Medicare and Medicaid Services (“CMS”) mandate but allowed it for the states originally parties to the lawsuit: Arizona, Alabama, Georgia, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, Utah, and West Virginia. The stay issued by a federal judge in Missouri is also still in place for the following ten states: Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. A federal court in Texas has blocked the mandate in Texas.