Coronavirus (COVID-19), HR Management & Compliance

6th Circuit Revives OSHA Vax-or-Testing Rule but Won’t Have the Last Word

Late Friday, a three-judge panel from the U.S. 6th Circuit Court of Appeals issued a decision “dissolving” the 5th Circuit’s stay order preventing the Occupational Safety and Health Administration (OSHA) from enforcing its COVID-19 vaccination-or-testing rule for employers with 100 or more employees. The next day, OSHA announced January 10 is the new deadline for compliance with its emergency temporary standard (ETS) but that it won’t issue citations for noncompliance until February 9, 2022. In the meantime, plaintiffs in the 6th Circuit case have already petitioned the U.S. Supreme Court to block the rule. The Court is expected to act quickly.

Background

On November 5, OSHA published its ETS requiring employers with at least 100 employees to implement the COVID-19 vax-or-testing policies by January 4. Under the directive, covered employees must (1) get vaccinated or (2) submit to weekly testing.

On November 12, the New Orleans-based 5th Circuit issued the order preventing OSHA from enforcing the ETS. As a result, agency announced it had “suspended activities related to the implementation and enforcement of the [rule] pending future developments in the litigation.” The case was then reassigned to the 6th Circuit in Cincinnati.

6th Circuit’s Decision

In rejecting the 5th Circuit’s decision staying the rule, two of the three 6th Circuit judges noted OSHA “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.” The majority added: “It is not appropriate to second-guess that agency determination considering the substantial evidence, including many peer-reviewed scientific studies, on which it relied.”

The third judge dissented, arguing OSHA “wants to issue a rule of national import, covering two-thirds of American workers, and [the agency] wants to do it without clear congressional authorization, without even public notice and comment, and with a capacious understanding of necessity.”

OSHA’s Reaction

Not surprisingly, OSHA was pleased with the 6th Circuit’s December 17 decision, stating:

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing [ETS]. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA announced it was “exercising enforcement discretion” with respect to the ETS’s compliance dates. To provide employers with enough time to come into compliance, the agency won’t issue citations for noncompliance with any of the rule’s requirements before January 10 or with the standard’s testing mandates before February 9, so long as an employer is exercising reasonable, good-faith efforts to comply. The agency said it will work closely with the regulated community to provide compliance assistance.

Takeaways for Employers

The 6th Circuit’s ruling won’t be the final word on OSHA’s ETS because the appeal has already been filed with the Supreme Court. But now that the agency has weighed in with the deadline, if the high court denies the petition, employers with 100 or more employees must begin to develop compliant policies:

  • Under those circumstances, the policies should be implemented by no later than January 10, even if you aren’t able to institute the testing requirements by that date.
  • If you implement the policy by January 10 and show you are “exercising reasonable, good-faith efforts to come into compliance” with the testing rules by February 9, OSHA won’t issue citations for noncompliance.

We will continue to monitor the situation as it evolves.

Penelope J. Phillips and Grant T. Collins are attorneys with Felhaber Larson in Minneapolis, Minnesota. You can reach them at pphillips@felhaber.com or gcollins@felhaber.com.