United States: Sixth Circuit Restores Temporary Emergency OSHA Standard for Private Employers Requiring COVID-19 Vaccinations or Weekly Testing
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On November 4, 2021, in response to President Biden’s executive order, the Department of Labor, through the Occupational Safety and Health Administration (âOSHAâ), issued a Temporary Emergency Standard (âETSâ). You can read our previous article on ETS here. Typically, the ETS requires all employers with 100 or more employees to require employees to be vaccinated against COVID-19 or undergo weekly tests. The ETS was immediately halted when the United States Court of Appeals for the Fifth Circuit granted a temporary suspension. Then, numerous lawsuits were filed across the country and actions were pending in each of the other circuit courts. The Sixth Circuit âwonâ the multidistrict lottery and was selected to hear the combined challenges, including OSHA’s emergency motion to dissolve the stay. You can read our previous article on temporary stay here.
On Friday evening, December 17, 2021, the United States Court of Appeals for the Sixth Circuit dissolved the suspension imposed by the Fifth Circuit. Advisory 2-1 considered the ETS to fall within OSHA’s existing authority and authority to regulate viruses and promulgate standards for the health and safety of employees in the workplace in response to “a new and dangerous global pandemic “. Therefore, unless the Supreme Court decides otherwise, President Biden’s vaccination or testing mandate for employers with 100 or more employees is once again in effect.
Next steps: ETS compliance
The Sixth Circuit has yet to rule on the merits of whether the ETS has exceeded OSHA’s statutory authority. Although the applicants have appealed to the Supreme Court to stay the execution, the ETS and its execution will continue according to the time limits initially set by OSHA, unless and until the Supreme Court decides otherwise. other. If the Supreme Court refuses to hear appeals of the suspension decision or to issue a suspension, OSHA can proceed with the enforcement of the ETS while the Sixth Circuit determines the merits of the various court challenges of the applicants.
In response to the Sixth Circuit ruling, OSHA issued a statement saying, “To account for any uncertainty created by the suspension, OSHA exercises enforcement discretion with respect to the compliance dates of the ‘ETS. To give employers sufficient time to come into compliance, OSHA will not issue citations for non-compliance with ETS requirements prior to January 10and will not issue citations for non-compliance with the standard’s testing requirements before February 9, as long as an employer makes reasonable and good faith efforts to comply with the standard. OSHA will work closely with the regulated community to provide compliance assistance. “(Emphasis added)
In California and the 21 states with an OSHA-approved state plan, the federal ETS is not automatically effective. Instead, state plans must notify OSHA if they intend to adopt the federal ETS or their own temporary COVID-19 emergency standard that is at least as effective as the federal version. . The notification was initially due within 15 days of the issuance of the ETS, but no state initially adopted the ETS because it was immediately suspended. It is not clear whether the suspension met this deadline and whether state plans will adopt the ETS now or wait and see if the Supreme Court will consider appeals of the suspension decision. Employers with employees in states with state plans should continue to monitor state level developments for further updates and consider drafting a written policy that meets the requirements of the ETS in the interval.
The vaccination or testing mandate for employers with 100 or more employees is again in effect for employers with employees in states under federal OSHA jurisdiction. With the ETS application deadline for compliance rapidly approaching, employers should immediately start drafting and implementing mandatory written policies on weekly vaccines / tests if they have not already done so.
Sheppard Mullin will continue to provide updates as they become available.
The legal landscape continues to evolve rapidly and there is a lack of clear authority or clear rules on implementation. This article is not intended to be a unique and unequivocal guide, but rather represents our interpretation of the current and general state of applicable law. This article does not address the potential impacts of the many other local, state, and federal ordinances that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability for disease. employee, family leave requirements, sick pay and other issues.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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