Sixth Circuit Releases Stay of OSHA ETS COVID-19 Vaccination Mandate

On November 4, 2021, we reported the announcement of the Department of Labor's Occupational and Safety Health Administration’s Emergency Temporary Standard (“OSHA’s ETS”) directing private businesses with more than 100 employees (large employers) to mandate vaccinations for employees, or have workers demonstrate a negative virus test on a weekly basis. Employers were required to implement policies by December 5, 2021, and begin providing paid time off for workers to get vaccinated and recover from any side effects from being vaccinated, as well as mandate masks in the workplace for unvaccinated workers.

However, on November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s ETS. The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.”

Most recently, on Friday, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay and OSHA can once again implement the vaccine mandate for large employers. According to OSHA, “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 complaint with the standard.”

OSHA may fine a covered employer that does not comply with the ETS up to $13,653 for each violation of the standard. Employers that willfully or repeatedly violate the standard can be fined up to $136,532. These fines could significantly increase if the Build Back Better Act is enacted.

For compliance questions, please contact Burke Warren partners Rachel E. Bossard at rbossard@burkelaw.com or 312-840-7029 or Alex D. Marks at amarks@burkelaw.com or 312-840-7022.