The Uncertain Fate of OSHA’s COVID-19 ETS—Supreme Court Oral Argument Today, January 7

The federal government’s Emergency Temporary Standard (ETS) mandating COVID-19 vaccination or testing for large businesses and federal contractors is the subject of intense litigation.  The ETS requires employers with 100 or more employees to ensure their employees are either fully vaccinated or tested for COVID-19 on a weekly basis, with several issues related to this requirement, such as compensation for time spent receiving the vaccine or testing, or recovering from symptoms, also addressed in the ETS.

While the ETS is commonly referred to as a “vaccine mandate,” the ETS does not require anyone to be vaccinated.  Rather, the ETS requires covered employers to decide between requiring their employees to be vaccinated, or to alternatively require unvaccinated workers to wear a mask on the job and test for COVID-19 weekly.  The initial deadline for compliance was December 6, 2021.

The ETS, created at the request of President Biden, spurred a wave of legal challenges from various states and interest groups nationwide.  On November 12, 2021, the Fifth Circuit Court of Appeals issued a “stay” of the ETS, halting enforcement while legal challenges are pending.

Because the ETS was challenged throughout the country, the litigation was ultimately consolidated in a single court, the Sixth Circuit Court of Appeals.  On December 17, the Sixth Circuit dissolved the stay issued by the Fifth Circuit, effectively reviving the ETS for the time being.

The stay issued by the Fifth Circuit halted enforcement of the ETS past the original deadline of December 6, 2021.  Therefore, OSHA issued a new deadline for compliance with ETS: January 10, 2022.  OSHA announced that it will not issue citations for noncompliance with any requirements of the ETS before then, and will not issue citations for noncompliance with the testing requirements before February 9, 2022 so long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard.

The Sixth Circuit’s lifting of the stay does not resolve the merits of the legal challenges to the ETS.  The Sixth Circuit may still find the ETS unlawful in the final review.  Additionally, some challengers have asked the U.S. Supreme Court to revive the stay and it recently accepted the case to review during a special hearing.  The Supreme Court will review the question of whether the temporary injunctions that had been issued to block the rules were properly put into place.  The legal standard to determine whether these injunctions are proper includes whether the party seeking to block the rule is “likely to succeed on the merits” of the case.

The Supreme Court is set to hear oral argument on January 7, 2022 (see court orders here and here).  A decision is anticipated within a few weeks.

The litigation surrounding the ETS is far from over.  However, the ETS is currently effective, and employers should be acting to come into compliance with its provisions by the deadlines of January 10, 2022 and February 9, 2022.  For additional questions, please contact your labor law counsel.

By Corey Kniss | January 7, 2022

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