The Occupational Safety and Health Administration, known as OSHA, issued an emergency temporary standard (ETS) to minimize the risk of COVID-19 spread in the workplace. The ETS requires employers with 100 employees or more to establish a vaccination policy. The policy requires employees to be fully vaccinated or, alternatively, non-vaccinated employees must submit to a weekly COVID test. Non-vaccinated employees must wear a mask to minimize transmission in the workplace. The ETS also places the responsibility with the employer to provide time off to receive the vaccine and recover from it.
The citations for non-compliance are steep. OSHA has the authority to issue $13,653 per violation when it’s classified as serious. The fees rise to $136,532 if the employer is in willful violation, or if the employer repeats a violation.
The COVID ETS was released on November 5, 2021. It took effect immediately upon publication in the Federal Register. However, several lawsuits challenging the rule were filed in the U.S. Court of Appeals for the Fifth, Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits. On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit stayed the rule. A stay means that the law has been placed on pause for the time being.
The Fifth Circuit Court’s Decision
A panel of three judges issued a stay. Essentially, they decided that OSHA’s mandate should be paused pending further court action. They reasoned that the employers who brought the claim believed serious statutory and constitutional issues arose with OSHA’s directive. The Court agreed and ordered the Department of Labor to respond to the request for a permanent injunction by November 8, 2021.
On November 12, 2021, the Fifth Circuit Court issued another order that reaffirmed its initial stay of the COVID ETS.
Is the Stay Final?
At the time of this article, the stay is just a temporary pause until the case is heard and decided.
At least four separate groups in 26 states have requested the Fifth, Sixth, Eighth, and Eleventh, Circuits to strike the rule for good, arguing that their businesses would suffer irreparable economic harm should the rule take effect.
Even though multiple lawsuits have been filed in different federal judicial circuits, only one circuit will ultimately get to decide the case. Which Court gets to hear the case will be selected randomly. According to federal regulations, which provide for a judicial panel. The judicial panel contains seven circuits. The district judges are from different circuits. The Chief Justice of the United States John Roberts designates who those judges will be. The Department of Justice expects the multi-circuit lottery to happen on or about November 16, 2021.
Effects of Fifth Circuit Stay?
For the time being, and while the stay remains in effect, employers do not have to comply with the vaccination and testing requirements imposed by the Emergency Temporary Standard. OSHA legally is prohibited from implementing and enforcing this ETS. However, employers must continue to follow other mandates if they apply. For example, the stay on the OSHA ruling does not apply to the vaccine mandate issued by the Centers for Medicare and Medicaid Services. However, such mandate is only relevant to Medicare and Medicaid-certified health care providers.
In the meantime, employers should continue to monitor the progression of the case. Once the cases become consolidated and reviewed on the merits, the rule may become valid. That would require employers with 100 employees or more to comply. The deadlines for compliance would potentially be extended, allowing employers who fall within the OSHA vaccine and reporting requirements a chance to pivot their current practices.
If an employer can begin creating policies and procedures for compliance should OSHA’s rule become legal and binding, it would be wise. Only, however, if an employer can do so without suffering significant economic harm. That’s because the timing of this litigation remains unclear. Once a court is selected through the lottery system, OSHA will have another opportunity to request that the Court lift the stay. That means that once the Court is designated, the stay could be lifted, and the OSHA vaccination and testing requirements could become effective. The law requires notice to the public, with the opportunity to submit comments. However, there hasn’t yet been a time period specified.
When a decision is reached, it will most likely be appealed to the United States Supreme Court. Therefore, whether and when OSHA’s vaccination and testing requirements become binding on businesses with over 100 employees remains unclear.
Updated: New Sixth Circuit Ruling on Fifth Circuit Stay
On Friday, December 17, 2021, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit lifted the Fifth Circuit’s stay. As mentioned earlier, the Fifth Circuit stay prevented OSHA’s Emergency Temporary Standard (ETS) from being implemented for employers with 100 or more employees. Now, the ETS can move forward with implementing its policy. That is, employees must be fully vaccinated and non-vaccinated employees must submit to a weekly COVID test. Non-vaccinated employees must wear a mask. The ETS also places the responsibility with the employer to provide time off to receive the vaccine and recover from it. There is a different OSHA rule and separate mandates for health care providers.
When Does OSHA’s Rule Go into Effect?
Workers must be vaccinated or start getting tested by January 4, 2022. The mask mandate must be enforced by December 5, 2022.
However, after the Sixth Circuit’s decision to lift the Fifth Circuit stay, OSHA announced that it wouldn’t issue citations when an employer does not comply with any requirements before January 10, 2022. OHSA also stated that it will not issue citations before February 9, 2022, for non-compliance with testing requirements as long as the employer exercises reasonable efforts to comply with the mandate.
How Long will OSHA’s Rule be in Effect?
It’s difficult to predict how long the rule will be in effect. For now, OSHA anticipates that the temporary standard will be in effect for six months. However, there is a possibility that it could be extended or made permanent.
Is This Sixth Circuit Court Decision Final?
Just as we previously saw when the Fifth Circuit prevented OSHA from implementing the mandates, the Sixth Circuit’s ruling is not permanent. However, the U.S. Supreme Court has agreed to listen to the arguments and decide on this controversial mandate.
On December 22, 2021, the U.S. Supreme Court issued an order granting a review of the legal challenges to OSHA’s ETS. The Court also set an accelerated timeline for the case. Oral arguments began on January 7, 2022.
