On late Friday, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit reinstated the U.S. Department of Labor’s (DOL) rule that medium and large employers require their workers to be fully inoculated against COVID-19 or get tested every week. In a 2-1 published decision, the Sixth Circuit found that the DOL’s Occupational Safety and Health Administration (OSHA) is authorized as a matter of law to issue the type of regulation outlined in its Emergency Temporary Standard (ETS). As we wrote in a previous client alert, the ETS requires employers with 100 or more employees to, among other things, implement written policies requiring employees to be fully vaccinated against COVID-19 and/or to undergo weekly testing and wear a mask.

November 6, 2021 – The Fifth Circuit Issues a Nationwide Stay of the ETS

Following its initial publication, the ETS was immediately challenged by numerous private employers, labor unions, state governments, and individual citizens in virtually every circuit court. On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an order granting the challengers’ request for a temporary nationwide stay of the ETS. The Fifth Circuit’s order cited “grave statutory and constitutional issues” with the ETS. In a follow-up opinion reaffirming its initial decision to stay the ETS, the Fifth Circuit held that the challengers were likely to succeed on the merits of their challenge to the ETS. In response to the Fifth Circuit’s stay, OSHA announced that it would suspend implementation and enforcement of the ETS. Based on the number of lawsuits filed across the nation challenging the ETS, the lawsuits were consolidated and assigned to the Sixth Circuit on November 16, 2021.

The Sixth Circuit Dissolves the Nationwide Stay

Late on Friday, December 17, 2021, in a win for the Biden administration, a three-judge panel of the Sixth Circuit ruled 2-1 to lift the temporary nationwide stay imposed by the Fifth Circuit. In dissolving the stay, the Sixth Circuit disagreed with the Fifth Circuit and held that “there is little likelihood of success for the challenges against OSHA’s bases for issuing the ETS.” Thus, according to the majority, the nationwide stay is unnecessary. 

OSHA Resumes Enforcement of the ETS

Shortly after the Sixth Circuit lifted the nationwide stay, OSHA announced on its website that it would resume implementation and enforcement of the ETS. OSHA, however, “is exercising enforcement discretion with respect to the compliance dates of the ETS.” Specifically, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022, nor will it issue citations for noncompliance with the testing requirements before February 9, 2022, as long as covered employers are “exercising reasonable, good faith efforts” to comply with the ETS.

What’s Next?

Several challengers have already filed emergency applications with the U.S. Supreme Court requesting that the high court issue its own stay. The ETS challengers also may immediately appeal the three-judge panel’s decision to dissolve the stay to the Supreme Court. It is unclear, however, whether the Supreme Court will take up the challengers’ requests for an emergency stay or grant any petitions for review of the panel’s decision dissolving the nationwide stay. The three-judge panel’s decision to dissolve the stay could also face an en banc review by the full Sixth Circuit. 

As litigation over the ETS continues, covered employers must quickly decide whether to develop and implement mandatory vaccination/testing policies pursuant to the ETS or take a wait-and-see approach. Waiting, however, could have significant consequences if the challengers do not prevail and the ETS remains in effect. Employers face significant penalties for noncompliance, including citation and/or fined penalties of up to $13,560.00 for each violation and up to $136,532.00 for each willful violation.    

Ulmer’s Employment & Labor Practice Group will continue to stay on top of these developments and provide more in-depth analysis and guidance on the ETS and what it means for your business.