Last Friday, the United States Court of Appeals for the Sixth Circuit lifted the Court of Appeals for the Fifth Circuit’s Stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing for employers with at least 100 employees.
A three-judge panel, comprised of an Obama appointee, a George W. Bush appointee and a Trump appointee, determined in a 2-1 vote that, in light of the continued spread of COVID-19 variants, OSHA “must be able to respond to dangers as they evolve.” Judge Joan Larsen, formerly of the Michigan Supreme Court and the Trump appointee, was the dissenter. In her dissent, Judge Larsen asserted that OSHA had not established there was “grave danger” in the workplace or that the ETS requirements would correct any such grave danger.
A group of States that oppose this mandate have filed an emergency appeal to the United States Supreme Court. An emergency appeal of this type goes directly to the justice assigned to the Sixth Circuit from which the appeal is being sought, which is Justice Brett Kavanaugh. Justice Kavanaugh may rule on his own or refer the appeal to the full court. What Justice Kavanaugh will do is difficult to predict. For what it may be worth, Justice Amy Coney Barrett recently rejected an emergency request made by a group of Indiana University students seeking to block enforcement of the school’s vaccine mandate after the Seventh Circuit refused to enjoin the mandate.
OSHA issued updated guidance over the weekend. The agency will not issue citations for noncompliance before January 10, 2022. The agency also stated it will exercise its discretion and not issue citations for noncompliance with the testing requirements under the ETS before February 9, 2022, provided an employer is exercising reasonable, good faith efforts to come into compliance with the standard.
As a reminder, all affected employers must develop a compliance program, offer paid time off for vaccinations (and to recover from any side effects), and must require unvaccinated workers to wear masks in the workplace. Employees who are not fully vaccinated must submit to weekly COVID-19 tests.
OSHA did not take a position regarding who will bear the cost of this weekly testing. Therefore, applicable state laws will govern who must bear the cost of testing and if there is no state law requirement, then it will be a matter of employer policy/collective bargaining (for those with bargaining units). Many states require employers to cover the cost of medical examinations and courts will likely consider a COVID-19 test as a medical examination.
OSHA has also provided templates for both a vaccination policy and a testing policy in lieu of vaccination. We remain available to assist clients with choosing what works best for their workplaces. OSHA’s emergency rule may remain in place for up to six months at which time it must be replaced by a permanent regulation.
In our sixtieth year, The Bennett Law Firm has been a leader on how to stay ahead of changes in policy. For questions or for more information on this issue, please contact Peter Bennett (pbennett@thebennettlawfirm.