On Friday, December 17th, the Cincinnati based 6th Circuit Federal Court of Appeals reinstated President Biden’s mandate for large employers (generally 100 or more employees) requiring their employees be vaccinated or tested weekly for COVID-19. The decision reversed a “stay” that had been issued by another court that blocked the mandate nationwide. Based on the ruling lifting the block, it is now expected the matter will be appealed to the US Supreme Court on an emergency basis.
The Occupational Safety and Health Administration (OSHA) federal emergency temporary standard (ETS) issued in November requires that employers with 100 or more employees ensure workers have been vaccinated for COVID-19 or be tested weekly, effective January 4, 2022. Those companies that fail to comply may be fined $14,000 per infraction. It is estimated that the order will impact an estimated 84 million American workers.
OSHA published the following guidance regarding the reinstatement (see link to current guidance here):
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.
The 6th Circuit’s decision suggests that the ETS may survive its legal challenges, and several groups have already appealed this latest decision to the Supreme Court. For now, a December 30 deadline is set for the Biden administration to respond to the appeals, and it is possible the Supreme Court will then take action on the case in early 2022. Employers subject to the ETS should consider what measures they would need to adopt to be considered to have made reasonable, good faith efforts to comply if the Supreme Court upholds the ETS.
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