GrayRobinson Labor and Employment Team: OSHA’s COVID-19 ETS Stay Dissolved; "Federal Contractor Vaccine Mandate" Still Preliminarily Enjoined

Insight | December 21, 2021 

6th Circuit Dissolves 5th Circuit’s Stay on OSHA’s ETS

As we explained in greater detail, on November 4, 2021, the U.S. Occupational Safety and Health Administration’s (OSHA) COVID-19 Emergency Temporary Standard (ETS) requires workplaces with 100 or more employees to (1) develop, implement, and enforce a mandatory COVID-19 vaccination policy; or (2) adopt a policy requiring employees to either receive the COVID-19 vaccine or elect to undergo weekly COVID-19 testing and wear a face covering at work in lieu of vaccination. The ETS does not apply to state and local government employers in states without an OSHA plan (such as Florida), as these employees are exempt from coverage under federal OSHA.

On November 12, 2021, the 5th Circuit stayed the ETS and ordered OSHA to "take no steps to implement or enforce" the ETS "until further court order." On November 17, 2021, a multidistrict litigation lottery was held and determined the U.S. 6th Circuit Court of Appeals would decide the merits of the legal challenges to the ETS. 

On December 17, 2021, a three-judge panel of 6th Circuit judges dissolved the U.S. 5th Circuit Court of Appeals’ stay of the ETS. In its 2-1 decision, the 6th Circuit rejected the 5th Circuit’s "blanket conclusion that the ETS is beyond the scope of OSHA’s statutory authority." Instead, it ruled that Congress provides the Secretary of Labor with "broad authority . . . to promulgate different kinds of standards for health and safety in the workplace," including emergency standards such as the ETS.  

Within hours of the 6th Circuit dissolving the 5th Circuit’s stay of the ETS, challengers to the ETS filed an emergency application with the U.S. Supreme Court for review of the decision, asking the Supreme Court to reinstate the stay on the ETS until it has an opportunity to review the dissolution.

What Does This Mean?

The 5th Circuit’s stay on OSHA’s ETS is currently dissolved, and OSHA can once again implement the ETS. Following the 6th Circuit’s decision, OSHA has updated its "COVID-19 Vaccination and Testing ETS" website to state it would be "exercising enforcement discretion with respect to the compliance dates of the ETS," which were originally December 5, 2021, and January 4, 2022, as discussed here. OSHA has identified January 10, 2022, and February 9, 2022, as the new compliance dates and has stated it "will not issue citations for noncompliance . . . so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard." 

Currently: 

February 9, 2022, is the deadline by which all employers covered under the ETS are required to ensure that their employees have either received the necessary COVID-19 vaccinations or they produce a verified negative test on at least a weekly basis. An employee is considered "fully vaccinated" (boosters not included) under the ETS two weeks after the individual has received their second dose of a two-dose COVID-19 vaccine (e.g., Pfizer or Moderna) or two weeks after a one-dose vaccine (e.g., Johnson and Johnson).

January 10, 2022, is the deadline by which covered employers must comply with all other provisions, including the requirements for reporting and recordkeeping, providing paid time off for employees to get vaccinated, and masking requirements for unvaccinated workers described in the ETS.   

The OSHA ETS provides that it preempts any state or local laws which conflict with it so OSHA’s position will likely be that it preempts Florida’s anti-vaccine mandate statute applicable to private employers. Of course, like the OSHA ETS rule itself, this tension will be litigated in the courts.

11th Circuit Denies OSHA’s Request to Dissolve Preliminary Nationwide Injunction of "Federal Contractor Vaccine Mandate"

On December 17, 2021, the 11th U.S. Circuit Court of Appeals denied a request by the Biden administration to dissolve or stay the preliminary injunction enjoining the enforcement of the "Federal Contractor Vaccine Mandate" issued by the U.S. District Court for the Southern District of Georgia, as discussed here. In its decision, the 11th Circuit held that the administration failed to demonstrate it would suffer the sort of irreparable harm necessary to dissolve or stay the injunction. The 11th Circuit set an expedited schedule for a briefing on the merits of the Biden administration’s appeal and, barring the administration seeking immediate appeal to the U.S. Supreme Court, the injunction ordered by the Southern District of Georgia will remain in place until the 11th Circuit rules on the "Federal Contractor Vaccine Mandate."

This summary is an update to the GrayRobinson Labor and Employment Team Insight Series:

• Federal District Court Issues Nationwide Injunction on Federal Contractor Vaccine Mandate
• Vaccination Mandates: Employer Options for Mandating Vaccination Restricted
• OSHA ETS Stayed; Special Session B Concludes
• OSHA Sets New Vaccination Rules for Employers with 100 or More Employees

Management and human resources personnel with questions regarding OSHA’s ETS, the "Federal Contractor Vaccine Mandate," or any of the topics covered herein are encouraged to contact a member of GrayRobinson’s Labor and Employment Team.