On December 17, 2021, the Sixth Circuit Court of Appeals, in a 2-1 decision, dissolved the stay previously placed on the Occupational and Safety Health Administration's ("OSHA") Emergency Temporary Standard (“ETS”) by the Fifth Circuit. Now, under the ETS, employers with 100 or more employees must require that all employees be fully vaccinated against COVID-19 or be required to wear face coverings and undergo weekly testing. We previously provided guidance on the ETS, here.
The day after the decision was published, OSHA provided the following statements to address compliance deadlines: “To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with ETS’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”
The court reasoned that:
- A virus falls squarely within the scope of OSHA’s emergency standard statutory authority and thus OSHA has the authority to implement the mandate.
- The ETS is not an enormous expansion of OSHA’s prior regulatory powers as OSHA has been regulating workplace health and safety for decades.
- OSHA’s reliance on the rise of the Delta variant and the FDA approval of several vaccines is sufficient evidence that OSHA was responding to a true emergency, a prerequisite for implementing an “emergency” standard.
- OSHA’s public health data detailing the vast deleterious effect COVID-19 had on workers and the public at large proved COVID-19 was a “grave danger” to all workplaces.
- The ETS does not violate the Commerce Clause of the Constitution.
- The ETS provides employers with multiple options aside from vaccination itself, including masking and testing.
- Delaying the implementation of the ETS puts workers and the general public at further risk by failing to curtail the spread of the COVID-19 virus.
While we wait to see whether the Supreme Court will hear the request to shut down the ETS, the ETS is in effect for employers in federal OSHA jurisdictions and the least risky option is for covered employers to ensure compliance. Importantly, some states have their own worker safety agencies, as detailed here, State Plans | Occupational Safety and Health Administration (osha.gov). Under the federal ETS, these states have 30 days to implement the OSHA ETS or their own ETS that is at least as protective of workers as the federal standard.
California is one such state and its state agency, Cal OSHA is expected to adopt the ETS or modify its existing ETS to follow the federal standard or perhaps implement stricter safety requirements. Covered employers in California should begin preparing for implementation of the ETS now. For those in federal OSHA territory, even if the state has passed laws that prohibit vaccine mandates, it is likely that the OSHA ETS preempts those laws. When the ETS became effective on November 5, it provided that state plans must notify OSHA within 15 days of its intention, and then adopt either the ETS or its own regulation within 30 days. OSHA hasn’t modified these deadlines due to the recently dissolved stay so we expect state plan agencies will begin the process of evaluating their course of action now.
Employers may wish to consult with counsel to confirm if they are a covered employer and to ensure they are properly considering requests for medical and religious exemptions and are engaging in the interactive process with employees who are approved for such exemptions. The standards for evaluating undue hardship are different for each type of request and each employee’s situation should be considered before deciding whether an accommodation is possible.