The United States Court of Appeals for the Sixth Circuit issued an opinion on December 17, 2021, lifting the stay on the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) applicable to employers with one hundred or more employees. The Fifth Circuit previously issued the stay prohibiting OSHA from implementing and/or enforcing the standard. The Sixth Circuit’s decision has overturned the prohibition, allowing OSHA to move forward with its efforts to require employers to enact COVID-19 vaccine mandates or undertake other efforts including weekly employee testing.
When the stay initially was implemented, OSHA announced that it was suspending implementation and enforcement efforts as required by the Court’s Order. However, other sources within the federal government, including the White House, indicated that they did not believe the stay would ultimately affect implementation of the ETS.
In response to the Sixth Circuit’s decision, OSHA issued the following statement:
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.
Although the stay has been lifted, the Sixth Circuit has yet to make a determination on the validity of the ETS itself. The decision only applies to whether OSHA may begin implementing and enforcing the ETS. The matter of the stay itself may now be appealed to the Supreme Court which may decide to reinstate the stay until the courts are able to review the validity of the ETS.
In the meantime, to protect themselves from OSHA penalties, which can be as high as $136,532.00 per violation (for willful or repeat violations), employers can begin the following:
- Analyze the workforce to determine whether the one hundred employee threshold is met.
- Decide whether to allow the option of weekly testing and mask wearing for employees who wish not to become vaccinated absent a valid medial or religious accommodation. If the option is not allowed, determine the consequence for employees who refuse to become vaccinated.
- Set guidelines for requesting medical and religious accommodations and the approval process.
- Review options for weekly testing and determine who – the employer or the employee – will be responsible for the costs of testing.
- Prepare a written policy that is compliant with the ETS and distribute it to employees.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.
