OSHA Emergency Temporary Standards & Vaccine Mandate Update
On Friday, December 17th, 2021, the 6th U.S. Circuit Court of Appeals, which covers Kentucky, lifted the injunction blocking OSHA’s COVID-19 vaccination Emergency Temporary Standard (ETS) in the case of BST Holdings, LLC et al v. OSHA, et al, No. 21-4080 (6th Cir. Dec. 17, 2021). The ETS mandate would require all private businesses with 100+ employees (including part-time and temporary employees) to require their workers be vaccinated or that they submit to weekly COVID tests. Violations could cost as much as $14,000 per unvaccinated worker.
Following review by a three-judge panel of the Court, the 2-1 decision lifts the stay imposed on the ETS by the 5th Circuit, and likely sets up an appeal by the mandate’s challengers to the U.S. Supreme Court. While the court proceedings extended past the previously set December 9th, 2021 deadline it set for employers to implement COVID 19 mandates, private businesses with 100+ employees now have until January 10th, 2022 to implement ETS’ other components, including policies requiring face coverings and COVID 19 testing for employees who are unvaccinated.
Not surprisingly, and almost immediately after the Court’s decision was published on December 17, 2021, there were a host of challenges to the 6th Circuit’s decision. The challenges range from arguing the ETS’s are overly broad and an unprecedented exercise of OSHA’s power; violate the First Amendment as well as the Religious Freedom Restoration Act; and that the mandates should be stayed until a full briefing on the merits can take place.
We encourage our clients that operate in multiple states or municipalities to be mindful of state and local laws, ordinances, and executive orders that might limit the employer’s ability to require vaccination or otherwise conflict with ETS requirements.
The ETS mandates remain highly visible in the media and we monitor the latest developments in the courts and related agencies to bring you current updates that may impact your business and daily operations.
As always, if you have any questions about the OSHA ETS requirements, vaccination policies, employee training and communication, or other COVID-related matters, please reach out to us for a consultation.