Guest Column

Appeals Court Gives Life to OSHA’s Vaccine Mandate

The Sixth Circuit Court of Appeals lifts stay on enforcement of OSHA’s ETS

Late Friday, Dec. 17, the U.S. Sixth Circuit Court of Appeals issued a ruling that gave life to OSHA’s emergency temporary standard (ETS) requiring employers with 100 or more employees to implement a vaccine mandate policy with a weekly testing option. OSHA’s ETS had been subject to a temporary stay issued by the Fifth Circuit of Appeals. Numerous lawsuits were filed across the country seeking to block OSHA’s enforcement of the ETS.

Those lawsuits were consolidated while the Fifth Circuit’s stay remained in place. The Sixth Circuit Court of Appeals was chosen, by lottery, as the court to hear arguments on whether the stay should be enforced or dissolved. The Sixth Circuit’s decision dissolves the stay, allowing OSHA to enforce the ETS.

With the decision from the Sixth Circuit, large employers subject to the ETS will need to scramble in order to meet the requirements. While the ETS first required compliance by Jan. 4, it looks like roofing contractors will have more time to comply. Shortly after the Sixth Circuit published its opinion, OSHA issued a press release noting that, given the uncertainties surrounding the ETS in light of the litigation filed across the country seeking to block its enforcement, it would not begin issuing citations for noncompliance with any requirements of the ETS before Jan. 10.

The release also stated it will not issue any citations for noncompliance with the testing requirements of the ETS until Feb. 9, so long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard. Employers subject to the ETS who fail or refuse to comply with the standard by these deadlines will be subject to OSHA citations, which, in 2021, equated to $13,653 for a serious violation. The penalty amount will increase beginning in January 2022.

Immediately after the Sixth Circuit Court of Appeals issued its decision allowing OSHA's enforcement of the ETS, various conservative groups and business groups indicated that the decision would be appealed to the U.S. Supreme Court. To date, the Supreme Court has been hesitant to get involved in state and local vaccine mandates, allowing those mandates to remain in place. It remains to be seen whether the justices will agree to review the decision by the Sixth Circuit, and if so, whether the decision will be affirmed or reversed. What we know for sure is that there will be more to come, and we will be sure to provide you with the information as it is published.

The Sixth Circuit’s ruling has no effect on the current status of what is commonly referred to as the Federal Contractor Vaccine Mandate. The Federal Contractor Vaccine Mandate remains subject to a nationwide stay following a decision by the United States District Court for the Southern District of Georgia.

As we approach Jan. 10, the date OSHA will begin issuing citations for noncompliance with the requirements of the ETS, those employers with 100 or more employees need to be ready.

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Philip Siegel is a partner and shareholder with the firm Hendrick, Phillips, Salzman & Siegel, P.C., whose practice focuses on labor and employment matters within the construction industry. Philip has an undergraduate B.B.A. from the University of Michigan, and he obtained his law degree from Emory University School of Law.