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Us Court of Appeals Sixth Circuit Lifts Nation-Wide Injunction by The Fifth Circuit Court for The Covid-19 Emergency Temporary Standard

Issued by the federal Occupational Safety and Health Administration (OSHA), the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), as of December 17, 2021, can now go into effect. The Sixth Circuit Court’s decision agreeing with the Biden administration that OSHA has the authority to develop an emergency standard to protect workers from the effects of the COVID-19.

OSHA, during the decision-making process, provided the Sixth Circuit Court supportive evidence of the danger required to reach an ETS order. OSHA’s statement reports that it will move forward with the ETS. However, it will not issue citations for any non-compliance for any of the requirements before January 10, 2022. If employers exercise a “good faith effort” complying with mandatory vaccination and testing requirements for the ETS, OSHA will not file citations for noncompliance before February 9, 2022.

Is the Sixth Circuit Court’s Decision the Last?

An injunction for a federal vaccine mandate that applies to healthcare workers will be reviewed by the Supreme Court. The Supreme Court has also been asked to review challenges to the Sixth Circuit Court’s decision on OSHA’s ETS order as well. Recently, the Supreme Court has refused to overturn vaccine mandates for healthcare workers in both Maine and New York.

What does OSHA’s ETA (Emergency Temporary Standard) Mean for Employers?

The ETS mandates that employers with 100 or more employees implement and enforce the following:

  • A mandatory COVID-19 vaccination policy,

  • Or allow employees to choose vaccination or give proof of COVID-19 testing.

Regardless of which policy is used; employers must also allow employees to request exceptions due to certain medical conditions or if there is a necessary medical delay to the vaccination. Employers must also allow reasonable accommodations due to disability or religiously held beliefs because of vaccinations.

Updated OSHA Enforcement Dates

January 10, 2022, is the deadline stipulated by OSHA for employers to gather and manage their employees’ vaccination status. By this date, employers must provide information to employees about the policy, its regulations, and safety. Unvaccinated employees must wear face coverings at all times indoors or when riding or driving an enclosed vehicle.  Exceptions to face coverings requirements include:

  • Identification purposes for security and safety reasons

  • Eating and drinking in the workplace for a limited time

  • When alone in a room with ceiling to floor walls and a closed-door

  • When an employee is wearing a respirator or face mask

  • If an employer can show that wearing a face mask presents a greater hazard than complying with the ETS’ face-covering requirement

If state or local laws require more than a face-covering then the state or local requirements will apply too.

What Employers Must Know

More than likely, further requirements will evolve over time, and employers should know the following to remain compliant:

  • Understand the ETS requirements and any state/local vaccine and face-covering requirements.

  • Create a written vaccine or face covering policy in the context of the federal ETS requirements. For help, use OSHA’s model policy.

  • Gather employee vaccination data to decide the requirements that applies to each individual.

  • If employees are represented by unions and covered by collective bargaining agreements, be prepared to meet, upon request with employee representatives about the impact of ETS.