Sixth Circuit Lifts the Stay on OSHA'S Emergency Temporary Standard Regarding COVID-19 Vaccination and Testing

On Friday, December 17, 2021, the Sixth Circuit Court of Appeals lifted the stay on OSHA’s Emergency Temporary Standards (“ETS”). The Court held that OSHA did not exceed its statutory authority in issuing the ETS because the Occupational Safety and Health (OSH) Act “requires OSHA to issue an emergency standard if necessary to protect workers from a ‘grave danger’ presented by ‘exposure to substances or agents determined to be toxic or physically harmful or from new hazards.’” The majority concluded that regulating an “agent that causes bodily harm”—including a virus—is squarely within OSHA’s authority.

In response to the Sixth Circuit’s decision, OSHA published the following comment:

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health workplace standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

OSHA’s ETS applies to private-sector employers with 100 or more employees. Covered employers must determine the vaccination status of each employee and keep records related to vaccination status, provide specific information about vaccines, and develop and implement written policies describing the requirements with regard to vaccination and testing. Covered employers must comply with these provisions by January 10, 2022. If an employer opts to permit employees to test weekly instead of vaccination, then testing of unvaccinated employees must begin on or before February 9, 2022.

OSHA has stated that it "will not issue citations for noncompliance with the standard's testing requirements before Feb. 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

The state attorneys general who oppose the ETS, including Indiana, have already filed an appeal to the U.S. Supreme Court. Unless and until the U.S. Supreme Court issues a ruling to the contrary, covered employers should proceed forward to comply with OSHA’s new dates.

The Employment Law Team at Barrett McNagny will keep you updated of any further developments.

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