Challenges to the federal government’s “vax-or-test” mandate for private employers with 100 or more employees started almost as soon as the Occupational Health & Safety Administration released its emergency temporary standard (ETS) in early November. The on-again, off-again mandate is back on … at least for now.

On Friday December 17, 2021, the Sixth Circuit Court of Appeals granted the government’s motion to dissolve the administrative stay of the OSHA ETS that was issued by the Fifth Circuit Court of Appeals last month. OSHA stated that it was “gratified” by the Sixth Circuit’s decision because it can now “once again implement this vital workplace health standard,” requiring employers to protect the health of their workers by mitigating the spread of the COVID-19 virus in the workplace.

The legal battle continues

After the OSHA ETS was issued on November 5, 2021, the Fifth Circuit Court of Appeals halted implementation and enforcement of the vax-or-test mandate, pending judicial review, by issuing a stay. The legal challenges continued nationwide, and all cases were subsequently consolidated in the Sixth Circuit. In issuing its opinion, a three-judge panel of the Sixth Circuit generally found that OSHA has long-standing authority to protect workers against infectious diseases (including regulation of viruses), saying, “The ETS is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”

Following the Sixth Circuit’s 2-1 decision to lift the stay, various groups immediately filed for relief in the U.S. Supreme Court, seeking to have SCOTUS place the mandate back on hold pending a full judicial disposition of the matter. The Sixth Circuit has not decided the fate of the ETS on the merits; it has only lifted the stay. We are, of course, keeping a close watch on further developments.

What this means for employers now

Given the uncertainty that the stay created, OSHA issued a statement regarding its enforcement efforts: “…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. OSHA will work closely with the regulated community to provide compliance assistance.”

This means that employers should begin gathering vaccination status records from their employees, if they have not already. By January 10, 2022, employers must require employees who are not fully vaccinated to wear face coverings at all times when indoors and with another person for work purposes. By February 9, 2022, employers must be ready to require weekly testing of employees who are not vaccinated.