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Federal Vaccinate-or-Test Requirement Now Scheduled to Impact Many Workplaces in Three Weeks

    Client Alerts
  • December 19, 2021

The federal government’s vaccinate-or-test-and-mask policy impacting many private workplaces is no longer on hold. On November 4, the Occupational Safety and Health Administration issued its emergency temporary standard (ETS) ordering employers with 100 or more employees to require vaccination against COVID-19 or weekly testing of unvaccinated employees by January 4. On November 12, the Fifth Circuit Court of Appeals issued an order staying enforcement of the ETS nationwide. Subsequently, through a tortuous procedural process, the challenges to the ETS were consolidated and assigned to the Sixth Circuit Court of Appeals.

On December 17, a three-judge panel of the Sixth Circuit Court of Appeals dissolved the stay of enforcement. In support of its ruling, the panel found that “[b]ased on the substantial evidence referenced and relied upon by OSHA, there is little likelihood of success for the challenges against OSHA’s bases for issuing the ETS.” The panel also found that the “Petitioners have not shown that any injury from lifting the stay outweighs the injuries to the Government and the public interest” because the challengers’ alleged speculative injuries while the government sought to curtail “the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.”

The Sixth Circuit’s ruling is now ripe for review by the Supreme Court. As of this date, multiple challengers have filed emergency requests with the Supreme Court to stay the ETS. The Supreme Court has not yet set a briefing schedule for the emergency requests.

On December 17, OSHA issued a statement regarding the Sixth Circuit’s ruling stating that it “can once again implement this vital workplace health standard[.]” OSHA also indicted that it would exercise: “enforcement discretion with respect to the compliance dates of the ETS. 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 the employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

Unless the Supreme Court stays the ETS, then by January 10, covered employers must comply with all provisions of the ETS except the testing requirement. Specifically, employers must:

1. Adopt a policy requiring vaccination or weekly testing and masking.

2. Determine the vaccination status of each employee and obtain acceptable proof.

3. Require employees to provide notice of a positive COVID-19 test and immediately remove them from the workplace.

4. Provide up to four hours of paid leave to get vaccinated and a “reasonable amount” of paid leave to recover from vaccination side effects.

By February 9, employers must begin testing unvaccinated employees for COVID-19 on at least a weekly basis.