COVID-19 Update: Sixth Circuit Dissolves OSHA ETS Stay, Private Employers with 100+ Employees Need to Comply with Vaccine Mandate or Weekly Testing & OSHA Announces Enforcement Deadlines

On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay on the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) nationwide.  As a reminder, OSHA’s ETS mandates that private employers with 100+ employees require COVID-19 vaccination or weekly testing, along with other COVID-19 related policy implementation, recordkeeping and disclosure obligations. 

In response to the Sixth Circuit’s Order, OSHA reinstated the implementation of its ETS, which means that employers need to move forward with compliance efforts under the ETS. 

OSHA has announced on its website new, extended compliance and enforcement deadlines for employers who are exercising reasonable, good faith efforts to comply with the standard:

January 10, 2022:  OSHA will begin issuing citations for noncompliance with the ETS requirements (i.e., developing a vaccine and/or testing policy, masking for unvaccinated employees, and providing Paid Time Off for employees to get vaccinated).

February 9, 2022:  OSHA will begin issuing citations for noncompliance with the ETS’s weekly testing requirements.

Numerous emergency applications seeking to block the OSHA ETS were filed with the Supreme Court of the United States following the Sixth Circuit’s Order.  Justice Brett Kavanaugh is assigned to the Sixth Circuit and has called for the government to file a response to the docketed emergency applications by December 30, 2021. 

Justice Kavanaugh may choose to (1) reverse the dissolution of the stay; (2) deny the emergency applications allowing the OSHA ETS to remain in effect during the larger litigation; or (3) forward the emergency applications to the full Supreme Court for further review.

Given the December 30 briefing deadline for the government, we do not expect a decision from the Supreme Court on the stay until early 2022. 

What does this mean for employers?

Private sector employers with 100+ total employees need to take immediate actions to comply with the OSHA ETS in order to meet the imminent deadlines set by OSHA.  Review our prior post describing all of the ETS requirements here.

This update does not apply to employers with federal contracts, including sub-contractors, or employers who participate in Medicaid and/or Medicare programs with less than 100 employees.  Such employers should be aware that those COVID-19 rules, that do not allow the testing alternative to vaccination (i.e., President Biden’s Executive Order 14042 for federal contractors, and CMS’s Omnibus COVID-19 rule for Medicaid/Medicare participants) remain stayed.  The CMS mandate is stayed in 25 states (including Texas), and the Federal Contractor Mandate is stayed nationwide.  The CMS mandate is headed to the Supreme Court along with the OSHA ETS.  However, remember, federal contractors and healthcare employers with 100+ employees are subject to the OSHA ETS, regardless of the outcome of these other mandates.

The OSHA ETS does not apply to Texas public sector employers.  However, public employers are still under the purview of Governor Abbott’s Executive Orders and Texas law.

For more information on the ETS, we recommend reviewing OSHA’s COVID-19 Vaccination and Testing ETS page.

This summary was prepared by Lloyd Gosselink’s Employment Law Practice Group:  Sheila Gladstone, Sarah Glaser, Emily Linn, and Jessica Maynard.  If you would like more information, please contact Sheila at sgladstone@lglawfirm.com or 512.322.5863, Sarah at sglaser@lglawfirm.com or 512.322.5881, Emily at elinn@lglawfirm.com or 512.322.5889, or Jessica at jmaynard@lglawfirm.com or 512.322.5807.