Update: Supreme Court Blocks Decision
The U.S. Supreme Court today blocked the Occupational Safety and Health Administration's (OSHA's) emergency temporary standard requiring businesses with at least 100 employees to ensure workers are vaccinated against the coronavirus or wear masks and undergo weekly COVID-19 testing. But it allowed the federal government to require COVID-19 vaccination for health care workers at Medicare- and Medicaid-certified providers and suppliers.
The first decision criticized OSHA's rule as a "blunt instrument" that "draws no distinctions based on industry or risk of exposure to COVID-19." It also called the rule a "significant encroachment into the lives—and health—of a vast number of employees." The Occupational Safety and Health Act does not plainly authorize the rule, the court stated.
In the second decision, the court noted that "health care workers around the country are ordinarily required to be vaccinated for diseases."
On Friday, December 17, 2021 the 6th Circuit Federal Court of Appeals reinstated OSHA'S federal emergency temporary standard (ETS) for Covid-19. The 6th Circuit court decision reverses the stay ordered in November by the 5th Circuit and allows OSHA to resume ETS implementation and enforcement nationwide.
The ETS establishes a mandatory vaccination policy requirement for private employers with 100 or more employees. ETS opponents have already filed an appeal with the U.S. Supreme Court challenging the 6th Circuit's decision.
OSHA Response and Guidance
OSHA has published the following guidance regarding the reinstatement:
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard's testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.
Impact on Employers
The 6th Circuit's decision suggests that the ETS may survive its legal challenges. Employers subject to the ETS should monitor legal developments closely. They should also consider what measures they would need to adopt if the Supreme Court upholds the ETS and to be considered to have made reasonable, good faith efforts to comply with the ETS.