On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit lifted the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) COVID-19 Emergency Temporary Standard (ETS). The ETS requires covered employers – employers with 100 or more employees – to develop, administer and enforce a mandatory COVID-19 vaccination policy or mandate employees to submit to weekly COVID-19 testing. It also requires employees wear face coverings when indoors.

In its ruling, the Sixth Circuit held that OSHA did not exceed its authority in issuing the ETS, noting that “OSHA has long asserted its authority to protect workers against infectious diseases,” and “[g]iven OSHA’s clear and exercised authority to regulate viruses, OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace.” The Sixth Circuit also stated, “[t]he record established that COVID-19 has continued to spread, mutate, kill and block the safe return of American workers to their jobs”, and “[t]o protect workers, OSHA can and must be able to respond to dangers as they evolve[.]”

On December 18, 2021, numerous businesses, trade groups, religious groups and state attorneys general filed emergency applications with the U.S. Supreme Court, requesting a stay of the ETS pending further judicial review by the U.S. Supreme Court. If the request is granted, a stay will be reinstated, and OSHA will be prohibited from enforcing the ETS until the U.S. Supreme Court rules on the emergency applications.

The emergency applications will be reviewed by U.S. Supreme Court Justice Brett Kavanaugh who is assigned to the Sixth Circuit. Justice Kavanaugh has discretion to rule on the emergency applications himself or to refer the emergency applications to the entire U.S. Supreme Court. Justice Kavanaugh has requested that the government file its response to the emergency applications by December 30, 2021.

OSHA announced that it would not issue non-compliance citations against employers for most of the ETS requirements prior to January 10, 2022 and the testing requirements before February 9, 2022, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with [the ETS].”

At this time, it remains unclear whether the U.S. Supreme Court will issue the requested stay or take up review of the ETS. Until the U.S. Supreme Court decides, the Sixth Circuit ruling means that most businesses with 100 or more employees must take actions to comply with the ETS by the January 10, 2022 and February 9, 2022 deadlines.

If you have any questions about these requirements or need assistance in navigating the ETS, please do not hesitate to contact an attorney in GCT’s Employment Law Practice Group.