On Friday night, December 17, 2021, the Sixth Circuit Court of Appeals in Cincinnati lifted the stay of OSHA's Emergency Temporary Standard (ETS) on mandatory vaccination or weekly testing. In a 2-1 opinion written by an Obama appointee, and joined in by a Bush appointee, the Sixth Circuit dissolved the nationwide stay previously issued by the Fifth Circuit on November 6, 2021. A Trump appointee dissented. In addressing the issue of whether a stay pending judicial review is merited, a majority of the three-judge panel found that "the harm to the government and public interest outweighs any irreparable injury to the individual petitioners who may be subject to a vaccination policy." Among other things, the court noted that employers have the option to require unvaccinated workers to wear a mask on the job and test for COVID-19 weekly. The dissenting judge stated that the petitioners had shown a likelihood of success on the merits of their challenge to the OSHA ETA. The dissenting judge stated it was clear that "the Secretary of Labor lacks statutory authority to issue the mandate . . . and the Secretary made no finding that the emergency rule is necessary for any sense even approaching indispensable."
OSHA in response to the ruling immediately updated its website and the Department of Labor issued a news release. OSHA indicates that it will move forward immediately to implement and enforce the ETS but revise the time deadline so that the first date to have everything but testing in place is January 9, 2022, followed by implementation of the testing by February 8, 2022. It should be noted, however, that technically compliance is required by the terms of the ETS and OSHA is stating it will use its enforcement discretion to not cite companies for noncompliance between now and the new deadlines if they can demonstrate that they have been making good faith efforts to come into compliance.
A number of parties in the Sixth Circuit proceedings have already filed a joint emergency motion with the Supreme Court requesting the Court to stay the ETS. It should be noted that the issue before the Supreme Court at the current time is limited to whether an emergency stay should be granted prohibiting OSHA from implementing or enforcing the stay while the court systems determine whether OSHA had the authority to issue the mandate. Failure to reinstate the stay by the high court may only mean that it is too early for the court system to resolve such issues.
The legal papers to the Supreme Court are directed to Justice Kavanaugh because he has jurisdiction over the appeals court that made the ruling. He is likely to refer the matter to the full court. The Court asked for responses by December 30, 2021, to the mandate challengers' request. The justices are already considering an appeal to the vaccine mandate aimed at healthcare workers and also ask for a response in that dispute by December 30, 2021.
The Eleventh Circuit on the same day denied the Government a stay of a nationwide injunction of the federal contractor vaccine mandate. It is anticipated that the Government will take up that denial with the Supreme Court.
At the same time, a growing number of states restrict COVID-19 vaccine mandates by private sector employers. As of the end of November, these states included Alabama, Arkansas, Arizona, Florida, Iowa, Montana, Tennessee, Texas, Utah, and West Virginia, and the list is growing. The Administration has indicated its intentions to pre-empt state laws to the extent contrary to its vaccine, testing, or mask requirements.
It is prudent at the present time for employers to move ahead in preparing the extensive documents required by the OSHA ETS, determine whether they will allow weekly testing rather than mandatory vaccination, prepare their reasonable accommodation exemption forms, determine the manner in which they deal with employees refusing the requirements so that they will be able to show current good faith efforts to comply as well as prepare for the need for compliance as the mandatory deadlines approach. Wimberly, Lawson, Steckel, Schneider & Stine, P.C. have prepared various policies to cover these points that can be adapted to individual company needs.
The President's executive order that applies to certain federal contractors and subcontractors that provide services to the federal government, and which requires vaccination without the testing option, was to have taken effect by January 4, 2022. A team of attorneys from Wimberly, Lawson, Steckel, Schneider & Stine, P.C., led by Larry Stine, was successful in securing a nationwide injunction against the federal contractor mandate which currently remains in effect.
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