Employer vaccine-or-test mandate resumes (for now)

By Christine M. Zinter
Bullard Law
NW Law firm

Late Friday evening, the U.S. Court of Appeals for the Sixth Circuit, in a surprise opinion, dissolved the injunction placed by the U.S. Court of Appeals for the Fifth Circuit to block OSHA’s COVID-19 vaccination and testing emergency temporary standard (ETS). The ETS mandates employers with 100 or more employees to require workers to be vaccinated against COVID-19 or undergo weekly testing.

After reviewing motions and oral arguments from the government and multiple state attorneys general and private employers, the Sixth Circuit in a 2-1 decision voted to overrule the Fifth Circuit’s stay, indicating OSHA has “clear and exercised authority to regulate viruses [and] necessarily has the authority to regulate infectious diseases that are not unique to the workplace.” Further, the Court notes OSHA satisfactorily “demonstrated the pervasive danger that COVID-19 poses to workers – unvaccinated workers in particular – in their workplaces” and dismissed claims that the OSHA standard was not economically feasible.

The dissent opinion is that the Secretary of Labor lacks the statutory authority to issue the mandate.

In a sharply divided (8-8) order, the Sixth Circuit declined the mandate challengers’ original request to bypass the normal three-judge panel and proceed to an en banc hearing before the entire circuit. But this opinion is not the end of the line for the battle over the legality of the ETS – the challengers have already filed at least one Notice of Application for Stay of the Sixth Circuit Order with the U.S. Supreme Court.

In response to this development, OSHA has announced that it will exercise enforcement discretion with respect to compliance dates and will not issue any citations for noncompliance before January 10, 2022 (originally December 6, 2021) and not issue any citations for noncompliance with the testing and masking requirements (originally January 4, 2022) before February 9, 2022, so long as an employer is exercising reasonable good faith efforts to come into compliance. A re-cap of the ETS may be found in our November 5, 2021 Alert.

This is a rapidly developing situation and Bullard Law will continue to provide updates as events unfold. In the meantime, pending a Supreme Court stay, employers with 100 or more employees should spend the next two weeks ascertaining employees’ vaccination status, implementing recordkeeping practices, and preparing for testing procedures. Employers in states with state OSHA plans, including Oregon and Washington, are well advised to also begin preparations for compliance. While neither Oregon nor Washington have yet adopted a rule, they have been monitoring the continued legal situation and likely have draft rules ready to promulgate once things are fully settled.

Whether group health plan issuers will be required to pay for workplace screening tests (as opposed to individual testing for medical reasons) remains to be seen.

The content of this Alert is provided for general information purposes only. It should not be considered legal advice or used as a substitute for consulting an attorney for legal advice.

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