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Sixth Circuit Reinstates OSHA ETS Requiring Vaccines or Testing for Large Employers

Updated: Dec 27, 2021

On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit issued a decision lifting the stay of OSHA's Emergency Temporary Standard ("ETS") requiring covered employers with 100 or more employees to mandate their employees to either be fully vaccinated against COVID-19 or wear approved protective face coverings in the workplace and take weekly COVID-19.

The U.S. Court of Appeals for the Fifth Circuit previously suspended enforcement of the ETS on November 6th. The Supreme Court will hold a a special hearing, with arguments scheduled on January 7, 2022, to decide the future of the mandate.

The ETS will now revert to the initial compliance dates - the mandatory vaccination policy was to be created and enacted by December 5, 2021 and the COVID-19 testing for employees who are not fully vaccinated is required by January 4, 2022. However, OSHA has issued a press release stating that the agency is exercising enforcement discretion with respect to these compliance dates. OSHA stated that they 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, as long as an employer is exercising "reasonable, good faith efforts to come into compliance with the standard."

In reaching their 2-1 decision, the Sixth Circuit reasoned that OSHA’s issuance of the ETS was not a transformative expansion of its regulatory power, noting that OSHA has regulated workplace health and safety, including diseases, for decades. OSHA has authority to issue an ETS if the agency can show: (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that a standard “is necessary to protect employees from such danger.”

The Court found that OSHA has demonstrated the "pervasive danger" presented by COVID-19 to workers in their workplaces, particularly unvaccinated workers. Further, the Court stated that OSHA’s current regulations were insufficient to address the problem. The Sixth Circuit also cited evidence presented by OSHA that vaccinations reduce the presence and severity of COVID-19 cases in the workplace, and effectively ensure that workers are protected from being infected and infecting others.

Employers must now focus their energy on compliance with the rule. What employers should know:

Who is covered by the ETS?

  • Private employers with 100 or more employees firm- or corporate-wide.

  • In states with OSHA-approved State Plans, state and local-government employers, as well as private employers, with 100 or more employees will be covered by state occupational safety and health requirements.

What must covered employers do to comply with the ETS?

  • Develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.

  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.

  • Provide employees "reasonable time," including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from any side effects experienced following each primary vaccination dose.

  • Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).

  • Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.

  • Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return to work criteria are met.

  • Ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes, except in certain limited circumstances.

  • Provide each employee with information, in a language and at a literacy level the employee understands, about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety, and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”); protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false statements or documentation.

  • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.

  • Make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative.

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