Update on OSHA’s COVID-19 Emergency Temporary Standard

On December 17th, the United States Sixth Circuit court issued a divided decision approving the Biden Administration’s request to reverse the Fifth Circuit court’s stay on OSHA’s COVID-19 Emergency Temporary Standard (ETS). With the stay being lifted, it appears the OSHA COVID-19 ETS is clear to go into effect as of January 4, 2022. The case was heard by a 3-judge panel, which issued a 2-1 ruling in favor of the Government’s motion to lift the stay on the ETS. The majority opinion writes, in part, the following justification for the decision: 

“[T]he costs of delaying implementation of the ETS are comparatively high. 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. In a conservative estimate, OSHA finds that the ETS will ‘save over 6,500 worker lives and prevent over 250,000 hospitalizations’ in just six months. A stay would risk compromising these numbers, indisputably a significant injury to the public. The harm to the Government and the public interest outweighs any irreparable injury to the individual Petitioners who may be subject to a vaccination policy . . .”

 Immediately after the ruling was announced, several different advocacy organizations and business groups filed appeals with the Supreme Court of the United States (SCOTUS). The Supreme Court has agreed to hear oral arguments on Friday, January 7th, 2022 on emergency requests in two separate cases by challengers including business groups, religious entities and various Republican-led U.S. states for orders blocking the vaccine requirements, with rulings expected in short order. The challengers maintain that President Biden and his administration have overstepped their authority.

At the present time, the OSHA ETS contains the deadline of January 4, 2022 to implement the vaccination or testing requirements. It is unclear if OSHA intends to provide new guidance for the ETS or to modify the compliance deadline given the recent court activity. In a statement on the OSHA website, the agency states: 

“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 standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.”

“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.”