In the on-again-off-again legal environment surrounding the OSHA vaccine mandate, on Friday, December 17, 2021 the Sixth Circuit Court of Appeals lifted the Fifth Circuit’s stay of OSHA vaccine mandate and reinstated the Emergency Temporary Standard (ETS). The ETS, which requires employers with 100 or more employees to implement and enforce a mandatory vaccine policy that requires employees to be vaccinated for COVID-19 , or to choose between vaccination or weekly testing, will now become effective as originally envisioned. [Later that same day, OSHA issued a Litigation Update extending the compliance deadline to January 10, and the testing deadline to February 9, provided the employer is making a good faith effort to come into compliance.]

In its decision, the Sixth Circuit found fault in the Fifth Circuit’s conclusion that OSHA exceeded its authority in issuing the stay, including its reasoning that the “grave danger” presented by a virus was not the type of exposure encompassed in OSHA’s ETS authority. The court then went on to address OSHA’s factual basis for issuing the standard, relying primarily on the reasons OSHA laid out in its extensive preamble to the ETS, and concluded that any challenges to OSHA’s bases for issuing the standard had little likelihood of success. The court also found that the cost of delaying the implementation of the standard outweighed any potential injury that flowed from its compliance.

It is unlikely that the Sixth Circuit’s decision will be the final word on the ETS, with an appeal to the full court or the U.S. Supreme Court likely in the coming days. In the meantime, employers should be prepared to comply with the ETS in the event it is ultimately upheld by becoming more familiar with its requirements and what it will entail if it becomes law. To learn more about the ETS, its requirements and exceptions, see, OSHA Issues Vaccine Mandate. To review OSHA’s Mandatory Vaccination Policy template, see https://www.osha.gov/sites/default/files/covid-19-ets2-sample-mandatory-vaccination-policy.docx. To review OSHA’s Mandatory Vaccination, Testing and Face Covering Policy template, see https://www.osha.gov/sites/default/files/covid-19-ets2-sample-employee-choice-vaccination-policy.docx.

If you have any questions about the ETS, OSHA’s vaccine mandate, the Sixth Circuit’s decision or other issues related to mandatory vaccination policies, feel free to contact Wessels Sherman attorney Alan Seneczko at alseneczko@wesselssherman.com or (262) 560-9696.