By Sara Swan
In early November, the Occupational Safety and Health Administration (OSHA) issued its “COVID-19 Vaccination and Testing; Emergency Temporary Standard” (ETS), requiring employers with 100 or more employees to implement policies requiring employee vaccination or enhanced safety measures for unvaccinated employees (including wearing face coverings and weekly COVID-19 testing). The ETS was subject to multiple petitions for review of its constitutionality, and one court (the Court of Appeals for the Fifth Circuit) granted a stay of the case and enjoined the implementation and enforcement of the ETS. In other words, it put the ETS on hold. You can read more about the ETS and the stay on our blogs here and here.
On November 16, the U.S. Court of Appeals for the Sixth Circuit, which has jurisdiction over federal appeals arising from Ohio, Kentucky, Tennessee and Michigan, was selected in a lottery to oversee the proceeding consolidating all the lawsuits challenging the ETS, including the stay granted by the Fifth Circuit Court of Appeals.
So where are we now that deadlines in the ETS are approaching? Last week, the government filed an emergency motion to dissolve, or, in the alternative, to narrow the stay. The U.S. Court of Appeals for the Sixth Circuit then issued a schedule for the submission of the parties’ briefs with a final deadline for reply briefs on December 10. As a result, the briefing process would extend beyond the ETS’s first major compliance deadline of December 6, which requires employers to have developed a vaccine policy, determined employee vaccination status, implemented face coverings for those who are not fully vaccinated and have leave in place for worker vaccination and recovery.
The next day the government filed a motion to amend the briefing schedule regarding the stay and set an expedited schedule for briefing on the merits of the case, i.e., the challenges to the ETS. The government requested, in part, that the briefing with respect to the stay be completed by December 6. In response, attorneys and solicitors general from various states opposing the ETS filed a motion requesting that the court deny the government’s motion to amend. No further action has been taken.
Given the question of when a decision will be made regarding the stay, employers are now left wondering if and when the ETS will go into effect. In addition to the December 6 compliance deadline, the ETS also requires that covered employees be fully vaccinated or tested regularly by January 4, 2022. Even if the Sixth Circuit grants the government’s request for an expedited briefing schedule, it does not appear likely that these deadlines will remain in place. Employers should keep the status of the ETS on their radar and be ready to act should the ETS be upheld.
As always, we will be closely monitoring all developments and will bring you important updates and information in a timely manner. If you have questions regarding the ETS, vaccine policies in general, or any of the other federal vaccination mandates, please feel free to contact our office.