U.S. 6th Circuit of Appeals Reinstates OSHA’s Vaccine Mandate ETS

UPDATE: 12/23/2021– The Supreme Court announced last night that it will hold a special hearing on Friday, January 7 to address the OSHA ETS (vaccination or masking and testing requirement for employers with 100 or more employees) and the CMS Interim Rule (vaccination requirements for certain health care workers).  The Supreme Court has previously upheld state vaccination requirements, but the OSHA ETS and the CMS Interim Rule pose a unique challenge, as the Court must determine whether the Executive Branch exceeded its authority in issuing the orders.  The Biden Administration has vowed to vigorously defend the ETS and the Interim Rule, and believes that legal precedent supports a decision to uphold both orders. 

UPDATE: 12/20/2021: On Monday 12/20, Justice Brett Kavanaugh has asked the Biden administration to respond to a flood of appeals, (with a deadline of 12/30) that have seeked to halt the vaccine mandate. After the Sixth Circuit reinstated the rule, a large number of states, trade associations, and religious groups have all appealed the ETS to the U.S. Supreme Court. Justice Kavanaugh oversees emergency appeals of the Sixth Circuit due to geography and with the deadline of 12/30, it is very likely the Supreme Court will rule on this in early 2022.

On Friday December 17th, the U.S. 6th Circuit of Appeals voted 2-1 to overruled a judge and have reinstated OSHA’s vaccine mandate ETS.

With the rule reinstated, up to 84 million workers in the country will now be subjected to OSHA’s ETS, and OSHA has stated that they will begin enforcing the mandate on January 10, 2022, but not issuing any citations for non-compliance before February 9, 2022.

The ETS establishes requirements for large employers (100 or more employees- firm or company wide) to protect unvaccinated employees from contracting COVID-19 in the workplace. 

Under the ETS, large employers are required to develop, implement, and enforce a workplace COVID-19 vaccination policy.  Employees will have the option of choosing to receive the COVID-19 vaccine, or if they choose not to, they are to be required to wear face coverings in the workplace, & undergo regular testing for COVID-19. Additionally this ETS preempts state and local laws.

Here’s what employers are required to do:

  • Develop, implement, and enforce mandatory vaccine policy. This policy may also include option for mandatory face coverings and weekly testing, if an employee does not want to receive the vaccine.
  • Determine and keep records of your employee’s vaccination status.
  • Support vaccination by allowing paid time off to receive the vaccine or to recover from any side effects that occur after receiving the vaccine.
  • Ensure that you enforce weekly testing, or require an employee to test negative within 7 days of returning to the workplace.
  • Require prompt notification of a positive COVID-19 test, or diagnosis.
  • If a vaccinated or non-vaccinated employee tests positive, immediately remove them from the workplace, until work criteria is met.
  • Ensure all unvaccinated employees wear face coverings at all times in a workplace setting.
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and any COVID-19 related hospitalizations within 24 hours of learning about the hospitalization.
  • Make certain records available to employees for examination and copying.

This blog article is intended for general information purposes only and should not be construed as legal advice or opinion.  Contact myHRcounsel with questions about the use and enforcement of vaccine mandates. As a reminder, we provide our clients with an OSHA-compliant policy, forms for employees to request religious and medical exemptions, and forms for employees who have lost or cannot produce physical proof of vaccination to attest to vaccination status, customized for your organization.