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Sixth Circuit Dissolves Stay on OSHA's 100+ Employer COVID-19 Vaccine Mandate

On Friday, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the stay previously issued by the Fifth Circuit on OSHA’s 100+ Employee Emergency Temporary Standard (“ETS”). This means that the ETS is back in effect, at least for now. Below are key questions and answers to help employers.

What reason did the Sixth Circuit give for dissolving the stay?

The Sixth Circuit, in a 2-1 ruling from a three-judge panel, reasoned that the parties challenging the ETS were not likely to succeed on the merits in the underlying litigation. Reviewing OSHA’s “grave danger” analysis of COVID-19 transmission in the workplace, the Sixth Circuit found that the ETS was necessary to address OSHA’s concerns. The majority opinion determined that OSHA had made sufficient findings supporting its conclusion that the “current situation is an emergency and one that can be ameliorated by agency action.” It is likely that the rapid spread of the Omicron variant was on the mind of the judges.

Is the 100+ Employee ETS currently in effect?

Yes. Since the previously issued stay has been dissolved, employers that are subject to this ETS should plan to comply. 

What are the chances that further court action will prevent the ETS from taking effect?

Over the weekend, several parties to the action filed emergency applications with the U.S. Supreme Court to review the decision to dissolve the stay. The Supreme Court will decide whether to hear the emergency application while the Sixth Circuit hears the underlying case. The legal journey for this ETS is ongoing and has taken many twists and turns. The ultimate fate of this ETS is still uncertain.

Are there new deadlines for compliance?

The original deadlines on the ETS were December 6, 2021 and January 4, 2022. OSHA announced that it will not issue citations for non-compliance before January 10, 2022 and will not enforce testing requirements until February 9, 2022, so long as an employer is “exercising reasonable good faith to come into compliance” with the ETS. Policy development, implementation, paid leave requirements, vaccination status evaluation, masking for employees who are not fully vaccinated, and notice requirements will be enforced as of January 10, 2022.

What should companies do to comply with the 100+ Employee ETS?

Employers should prepare and implement a policy that either requires vaccination or takes a hybrid approach that permits testing in lieu of vaccination. Employers must also determine whether they desire to implement on-site testing programs. Some geographic areas report difficulty obtaining self-tests given the high demand. We previously discussed the specific requirements of the ETS here. You can also view a replay of our webinar on the topic here. 

Does “fully vaccinated” under the ETS mean employees must have a booster shot?

Currently, no. “Fully vaccinated” is defined as a person’s status two weeks after completing a primary vaccination series. This does not include booster shots and additional doses. However, health officials have recently indicated that the definition of being fully vaccinated could be expanded in the future.

What is the status of the Federal Contractor Vaccine Mandate?

As of this writing, the federal contractor vaccine mandate is still on hold. On December 7, 2021, the United States District Court for the Southern District of Georgia entered a nationwide injunction blocking the federal contractor vaccine mandate from taking effect. The Biden Administration appealed the injunction to the United States Court of Appeals for the Eleventh Circuit, requesting that the court lift the nationwide injunction. On December 17, 2021, the Eleventh Circuit denied the Administration’s request and set an expedited briefing schedule on the merits of the case. As a result of the Court’s decision, the federal contractor vaccine mandate remains on hold pending further court order. In light of the briefing schedule set by the Court of Appeals, this vaccine mandate likely will remain on hold through January 2022.

On December 20, 2021, the United States District Court for the Eastern District of Missouri entered a separate order blocking the federal contractor vaccine mandate in Missouri, Nebraska, Alaska, Arkansas, Iowa, Montana, New Hampshire, North Dakota, South Dakota, and Wyoming.

What should I do if I am a federal contractor with 100 or more employees?

When OSHA’s 100+ Employee ETS was first published, OSHA made clear that employers subject to the federal contractor vaccine mandate were not covered by the ETS. Specifically, OSHA found that contractor employees already were sufficiently protected by the federal contractor vaccine mandate, i.e., that compliance with the ETS was not necessary.

With the 100+ Employee ETS back in place and the federal contractor vaccine mandate currently on hold, federal contractors are left in a legal gray area. Although OSHA has not yet provided an update on whether it will extend the 100+ Employee ETS to federal contractors, given the Administration’s desire to require vaccination for as many workers as possible, we recommend that federal contractors with 100 or more employees prepare to comply with the requirements of the 100+ Employee ETS, absent further guidance.

What is the status of the CMS vaccine mandate for health care providers?

It depends on the state in which a health care provider is located. As of the date of this publication, CMS has indicated that it is not currently enforcing its vaccine mandate pending the outcome of litigation. Federal courts have ruled on both sides of enforcement and the final outcome will be decided by the U.S. Supreme Court. As we write this, CMS is prevented from implementing its vaccine mandate in 25 states and is allowed to move forward in the other 25 states. The 25 states where CMS can legally enforce its health care vaccine mandate are California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin, as well as the District of Columbia. CMS has not yet said how it intends to move forward. Covered health care providers should be prepared for enforcement of the CMS vaccine mandate, perhaps as early as January 2022. 

What is the status of the OSHA Healthcare ETS?

As of this writing, the status of the June 21, 2021 Healthcare ETS is unclear. As an emergency temporary standard, the Healthcare ETS can only remain in effect for a period of six months. At the conclusion of the six-month period, a temporary standard must either become a permanent OSHA standard or it expires. 

Based on the law governing temporary standards, the Healthcare ETS is set to expire today, December 21, 2021. While healthcare providers will likely continue many of the COVID-transmission mitigation measures required under the Healthcare ETS, it is unclear what OSHA intends to do about the Healthcare ETS moving forward. We recommend that healthcare providers confer with counsel before rescinding or making any major changes to their COVID-19 policies and procedures.

If you have any questions, please reach out to our Employment and Labor Practice Group and/or Health Care Practice Group for guidance.

Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.

About the Authors

Theresa A. Mongiovi is a Principal in the firm's Employment and Labor Practice Group. She concentrates her practice on representing businesses, municipalities, non-profits, and executives in all aspects of the employment relationship. She also represents clients in business and commercial litigation. She litigates in various administrative agencies including the EEOC and PHRC as well as all state and federal courts in Pennsylvania.

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Angela H. Sanders is a Principal in the firm's Employment and Labor Practice Group. She focuses her practice in the areas of employment law, employment litigation, and civil litigation. Ms. Sanders provides day-to-day counseling to employers on a wide range of employment topics, including wage and hour issues, FMLA compliance, harassment and discrimination, hiring, employee misconduct, discipline and termination, drug and alcohol abuse, OSHA compliance, collective bargaining, and labor relations. She also assists clients in developing employee manuals, employment policies, and diversity plans. She regularly conducts training on employment law topics for employers, businesses, and professional and industry groups.

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Paula G. Sanders is a Principal and Co-Chair of the Firm's Health Care Practice Group, where she focuses her national practice exclusively on health care law. She represents clients on both substantive and procedural aspects of health facility regulation, such as surveys; licensure; Medicare/Medicaid; compliance; RAC, MIC, PERM, CERT and ZPIC audits; accreditation; payment matters; HIPAA; fraud and abuse, False Claims Act investigations and voluntary disclosures. 

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Andrea M. Kirshenbaum is the Chair of the Firm's Employment and Labor Practice Group and its related Practice Groups, Employment and Collective Class Actions, Employment & Employee Relations, Labor, Trade Secret & Non Compete Law, and Wage and Hour. She is also a member of the Firm's Appellate Department. She defends employers nationally in federal and state court litigation involving all major employment statutes, represents them in related government investigations, and counsels them proactively on compliance with these statutes.

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