By Sally A. Piefer

In early November, the Biden administration announced additional steps it was taking to battle the COVID-19 pandemic. The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced a new emergency temporary standard (“ETS”) which it claimed would “protect more than 84 million workers from the spread of the coronavirus on the job.”

Under this ETS, employers with 100 or more employees (as of November 4, 2021) were directed to develop, implement, and enforce a written mandatory COVID-19 vaccination policy. Alternatively, covered employers could adopt a written policy requiring employees to either choose to be vaccinated or undergo regular testing and wear a face covering at work.

Within days after the ETS was released, lawsuits were filed in an effort to halt the rule from going into effect. Parts of the ETS required employers to take certain actions by early December, and the testing/vaccination portion of the rule was slated to go into effect on January 4, 2022. On November 6, 2021, the ETS was halted nation-wide by the Fifth Circuit Court of Appeals. More lawsuits—both in favor and against the ETS—were filed across the country in an effort to gain an advantage in which federal Circuit Court would ultimately determine the ETS’s validity.

The Sixth Circuit Court of Appeals, with jurisdiction over Kentucky, Michigan, Ohio and Tennessee, was selected in the lottery. Many believed that based on the political makeup of that court, largely Republican-appointees, that the ETS might not survive the legal challenges.

The looming winter months, increased hospitalizations for COVID and the Omicron variant took the world by surprise in late November, and health experts opined that Omicron may spread even more quickly than the Delta variant.

Just a few days earlier, the Sixth Circuit determined the ETS’ fate would be decided by a 3-judge panel rather than a single judge. Sixteen active judges on the Sixth Circuit wrote opinions in favor and against this decision, and there was speculation in the legal community on who would sit on the 3-person panel for the Sixth Circuit and determine the ETS’ fate. Legal scholars surmised that based on the concurring and dissenting opinions filed regarding the decision to have a 3-judge panel, that the panel consisted of one judge appointed by the Obama administration, one judge appointed by the George W. Bush administration, and one judge appointed by the Trump administration.

The Biden administration asked the Court to dissolve the Fifth Circuit’s stay. Late on Friday, December 17, 2021, the Sixth Circuit Court of Appeals panel, in a largely unexpected move—and in a divided opinion—decided to lift the Fifth Circuit’s Order preventing the ETS from taking effect. The Court’s 56-page opinion explained, in part, that

Fundamentally, the ETS is an important step in curtailing 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 Court’s decision resulted in an immediate appeal to the U.S. Supreme Court, where another lawsuit is already pending on the legitimacy of the vaccine mandate for health care workers. The question, of course, is whether the ETS will satisfy the “grave danger” requirement for OSHA to have avoided the normal rule-making process.

What now for employers?

When the ETS was halted by the Fifth Circuit, we encouraged employers to continue to plan as if the ETS would take effect, so that employers would not be blindsided if the ETS were allowed to stand. Employers will now, a week before the year-end holidays, need to make sure they are ready for the ETS requirements on January 10, 2022. OSHA has indicated it will not issue citations before January 10, 2022 so that employers can implement the requirements.

Employers who have not already continued to plan for the ETS are encouraged to immediately take the following steps:

• Create a policy on vaccination or testing with mask wearing
• If you will offer employees the option of weekly testing, decide who will bear the cost for testing, and provide employees with paid time off to get vaccinated and to recover from the side effects of the vaccine
• Ascertain the vaccination status of each employee and obtain acceptable written proof of vaccination
• Maintain records of the vaccination status for each employee
• Provide materials encouraging vaccination to your employees and provide information about the ETS
• Ensure that all employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes—and enforce this requirement
• Require employees to immediately provide notice of a positive COVID-19 test or diagnosis and ensure that any employee with a positive test is removed from the workplace pursuant to CDC guidelines
• Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related in-patient hospitalizations within 24 hours
• Employers must be prepared to provide documentation of its written policy and the aggregate number of employees vaccinated within 4 business hours of a request by OSHA, and all other records requested by OSHA must be produced by the end of the business day following the request.

If you have questions or need assistance with policy development, please contact the Lindner & Marsack attorney with whom you regularly work. We will continue proving updates as we learn more about new directives, rules, or guidance.