Federal Appeals Court Reinstates Large Employer Vaccination/Testing Mandate

The U.S. Court of Appeals for the Sixth Circuit reinstated the nationwide, large employer vaccination or testing mandate on Friday evening: In re MCP No. 165, Occupational Safety & Health Admin. Rule on COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, Nos. 21-7000et al. (6th Cir. Dec. 17, 2021).  The three-judge panel lifted an injunction that had blocked the mandate in November after it was formally issued by the Occupational Safety and Health Administration (“OSHA”).  OSHA’s Emergency Temporary Standard applies to businesses with at least 100 employees.  More information regarding the Emergency Temporary Standard can be found in MIJB’s November 4, 2021 Client Alert.

New Deadlines for Covered Employers:  The U.S. Department of Labor announced in a press release that employers will be given more time to comply with the Emergency Temporary Standard’s requirements:

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.

Therefore, covered employers must meet all requirements of the Emergency Temporary Standard other than testing by January 10, 2022, which includes determining the vaccination status of employees and implementing a written policy with regard to vaccination or testing requirements.  If covered employers opt to permit testing in lieu of vaccination, then testing of unvaccinated employees must begin by February 9, 2022.

What’s Next:  Several emergency petitions were already filed with the U.S. Supreme Court asking it to immediately stay enforcement of the Emergency Temporary Standard.  While we cannot predict when a ruling might come, the Supreme Court will most likely act quickly given the new compliance dates for covered employers.

If you have any further questions about the Emergency Temporary Standard in the meantime, please contact a MacDonald Illig attorney.


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