May 20, 2022

Volume XII, Number 140

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UPDATE: Sixth Circuit Panel Lifts Fifth Circuit’s Stay on OSHA’S Vaccination and Testing Emergency Temporary Standard

Just before 7 p.m. on Friday, December 17, 2021, a divided panel of the Sixth Circuit dissolved the Stay issued by the Fifth Circuit, which prevented the Occupational Safety and Health Administration (“OSHA”) from enforcing its Vaccination and Testing Emergency Temporary Standard (“ETS”) while the regulation is challenged in the federal courts. With the Stay lifted, OSHA will move forward with requiring private employers with 100 or more employees to establish, implement, and enforce a written mandatory vaccination or testing policy.

The Sixth Circuit panel found that OSHA was authorized to issue regulations, like the ETS, to address “grave dangers” to workers and that the challengers did not establish a likelihood of success on the merits to support the Stay.  Accordingly, unless the U.S. Supreme Court intervenes, OSHA can require covered employers to comply with the ETS, while waiting for a final decision from the Courts.

OSHA has adjusted its compliance dates to give employers additional time to comply with the ETS. Covered employers now have until January 10, 2022, to create a vaccination policy, determine the vaccination status of its employees, and enforce a mask mandate for unvaccinated employees. OSHA also will not issue citations for noncompliance as it relates to the ETS’s weekly testing requirement for unvaccinated employees before February 9, 2022.

Within about an hour after the Sixth Circuit decision, parties challenging the ETS filed emergency appeals to the U.S. Supreme Court. Justice Kavanaugh, who is assigned to hear petitions from the Sixth Circuit, will decide whether to again stay the ETS. 

In the meantime, covered employers should continue in their efforts to create policies and procedures to comply with the ETS. While OSHA extended the compliance deadlines due to the uncertainty created by the Stay, OSHA made clear that it expects employers to exercise reasonable, good faith efforts in creating vaccination and testing policies.

© Steptoe & Johnson PLLC. All Rights Reserved.National Law Review, Volume XI, Number 354
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About this Author

Rodney L. Bean, Employment Litigation Attorney, Steptoe & Johnson PLLC Law Firm
Member

For more than 20 years, Rodney Bean has provided practical, no-nonsense advice to help leading employers develop and apply labor and human resources strategies that are both compliant and prudent.  He regularly counsels employers on most aspects of federal and state employment law, and has broad experience in wage and hour compliance and affirmative action planning. 

Representative Experience

  • Received no probable cause determination from Fairfax County (Virginia) Human Rights Commission in national origin discrimination claim...

304-598-8140
Ashley Faulkner Labor Employment Associate Attorney West Virginia Morgantown Steptoe & Johnson PLLC
Associate

Ashley Faulkner was drawn to practice law to make a positive impact on her hometown and state. She is a labor and employment lawyer working with clients in a variety of industries to creatively solve problems, often before litigation occurs. Ashley appreciates the human side of her practice and enjoys uncovering the “why” behind the matters she works on. She is often described as a “go-getter,” taking advantage of every opportunity to gain practical and leadership experience. Ashley strives to be known as more than a good lawyer and is often seen as a zealous advocate...

304-598-8164
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