UPDATE: The U.S. Supreme Court has announced it will hold a special session on January 7, 2022 and will hear oral argument on the legal challenges to the OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard as well as the regulations issued by the Centers for Medicare & Medicaid Services requiring vaccination for certain healthcare staff.  We will provide additional updates as they become available.

The U.S. Court of Appeals for the Sixth Circuit has dissolved the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).

In a 2-1 decision issued on December 17, the Sixth Circuit determined that OSHA did not exceed its authority in issuing the ETS, concluding that “[l]ongstanding precedent addressing the plain language of the ACT, OSHA’s interpretation of the statute, and examples of direct Congressional authorization following the enactment of the OSH  Act all show that OSHA’s authority includes protection against infectious diseases that present a significant risk in the workplace, without regard to exposure to that same hazard in some form outside the workplace.”

The Sixth Circuit went on to conclude that the plaintiffs could not show irreparable harm in light of COVID-19 still posing an emergency demonstrated by a recent rapid increase in COVID-19 infections and the emergence of the delta and omicron variants, and ultimately that the plaintiffs could not establish a likelihood of success on the merits warranting the Fifth Circuit’s stay.

Shortly after the Sixth Circuit’s decision, multiple parties filed an emergency motion with the U.S. Supreme Court requesting an immediate stay of the ETS and review. This application will  be overseen by Supreme Court Justice Brett Kavanaugh, who oversees the Sixth Circuit, and who may distribute the application to the full Supreme Court for consideration or he can decide this request on his own.  Justice Kavanaugh has directed the Department of Justice to respond to this application by December 30.

Pending further review, OSHA’s COVID-19 Vaccination and Testing ETS will move forward in the 29 states without a State Plan.  OSHA has announced that, to provide employers with sufficient time to come into compliance, it will not issue citations for non-compliance with any requirements of the ETS before January 10, 2022, and that it will not issue citations for noncompliance with the ETS’s testing requirements before February 9, 2022, as long as the employer is exercising reasonable, good faith efforts to come into compliance.

We previously issued an alert on the requirements of the ETS, which can be found here.  Those requirements include a written policy, collecting proof of vaccination, creating a roster of employees’ vaccination status, face cover requirements, record keeping requirements, and removal of COVID-19 positive or untested employees from the workplace.

The remaining 21 states with approved State Plans were required to adopt either the ETS or the state’s own regulation within 30 days of November 5, when the ETS was first published.  To date, none of these states have taken any action.  To the extent any of these 21 states have state anti-vaccination or anti-masking laws that conflict with ETS requirements, employers should continue to comply with those state laws until the State Plan formally takes action on the OSHA ETS.

Also of note, the OSHA COVID-19 Vaccination and Testing ETS excluded workplaces subject to OSHA’s June 21, 2021, COVID-19 Healthcare ETS.  However, absent some immediate action by OSHA, the Healthcare ETS will expire after December 21, 2021, in states without a State Plan.  For those 21 states with a State Plan, the expiration of the corresponding ETS will be set forth by those State Plans.  For example, for those employers with operations in Tennessee, Tennessee OSHA (TOSHA) will enforce its corresponding ETS for healthcare workers through February 20, 2022, six months after the August 23, 2021 adoption date.

If you have any questions about the OSHA ETS or vaccination guidance, please contact the author.

For additional information about the impact of these actions on federal government contractors, please see this post on our GovCon & Trade blog.