Employers with 100 or more employees remain in limbo while awaiting a federal appeals court decision on the fate of OSHA’s regulation requiring workers to either be vaccinated against COVID-19 (coronavirus) or tested weekly. As we previously reported, the U.S. Fifth Circuit Court of Appeals put a hold on OSHA’s COVID-19 Emergency Temporary Standard (ETS) until further notice. All lawsuits over the ETS were later consolidated into a single case before the U.S. Sixth Circuit Court of Appeals, which will decide whether to rescind the Fifth’s Circuit’s action or allow it to continue. As we explained when OSHA originally published the ETS, covered employers had until December 5, 2021, to comply with most of the rule. January 4, 2022, was the deadline to begin weekly testing of unvaccinated employees.
Many employers are wondering if they should be doing any preparatory work at this time. In our November 18, 2021, newsletter, Vigilant outlined steps employers may consider while awaiting a ruling from the Sixth Circuit. No one knows how the court will rule and the issue could certainly come before the U.S. Supreme Court. However, the Sixth Circuit has established December 10, 2021, as the final deadline for the parties in the case to submit their replies, so the court will likely issue a decision soon after that date.
Tips: Even if the OSHA vaccine mandate is eventually thrown out, state safety and health agencies in California, Oregon, and Washington could issue their own workplace vaccine and testing mandates. (Arizona is unlikely to do so, since Governor Doug Ducey announced that Arizona was joining a lawsuit challenging OSHA’s ETS.) So far, the only West Coast state making any official comment is Oregon. Oregon OSHA’s COVID-19 web page says, “Oregon OSHA is continuing discussions with stakeholders, and at this point, we do not anticipate adopting a rule by Dec. 4, 2021. If the stay remains in place, our timelines will be adjusted accordingly. We will continue to monitor the lawsuit and evaluate our options.” Vigilant will monitor developments and keep members posted.