U.S. Court of Appeals for the Sixth Circuit reinstates OSHA COVID-19 large employer vaccination and testing rule

Key Takeaways

On December 18, the U.S. Court of Appeals for the Sixth Circuit lifted the stay on the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) that requires large employers to develop, implement and enforce a COVID-19 vaccination or testing policy, thereby reinstating the rule. Following its publication in the Federal Register on November 5, 34 challenges were filed against the ETS in all twelve regional circuit courts. On November 6, the U.S. Court of Appeals for the Fifth Circuit issued a stay on ETS pending judicial review, directing OSHA to “take no steps to implement or enforce” the rule. On November 16, the Sixth Circuit was randomly selected to hear a consolidated version of the challenges to the rule. The Sixth Circuit’s dissolvement of the stay means that the ETS is now back in effect and covered employers must comply with the rule.

The ETS applies to employers with 100 employees or more that are subject to the Occupational Safety and Health (OSH) Act of 1970. This includes county governments located in the 26 states with OSHA-approved state plans, which are workplace safety and health programs operated by individual states or U.S. territories that have been approved by OSHA.

Following the Sixth Circuit’s lifting of the stay, OSHA announced that it would delay several of the deadlines under the ETS. OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022 and will not issue any citations for noncompliance with the standard’s testing requirements before February 9, 2022, as long as the employer is acting in good faith to comply with the rule. Previously, the deadline for employees to be fully vaccinated or to begin regular testing was January 4, 2022.

For more information on employer COVID-19 vaccine mandates, please see NACo’s FAQ.