OSHA’s Vaccine Mandate for Large Employers in Effect Again

Large employers with 100 or more workers are once again responsible for setting up mandates that their employees either be fully vaccinated against COVID-19 or undergo regular testing for the SARS-CoV-2 virus. The U.S. Court of Appeals for the Sixth Circuit lifted the Fifth Circuit’s stay of the U.S Department of Labor’s Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) on COVID-19 vaccination and testing, The National Law Review reports.

In an opinion written by Judge Jane B. Stanch, a three-judge panel determined in a 2-to-1 vote that in light of the continued spread of COVID-19 variants, OSHA “must be able to respond to dangers as they evolve.”

OSHA quickly announced it will not issue citations for noncompliance before January 10, 2022. The agency also stated it will exercise discretion in issuing citations for noncompliance with testing requirements under the ETS before February 9, 2022, if an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

“OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard,” the U.S. Department of Labor announced in a statement. “OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.”

Under the ETS, large employers must set face covering requirements, collect proof of employee vaccination, create a vaccination status roster, and remove COVID-19 positive or untested employees from the workplace. Covered employers must decide whether to adopt a mandatory vaccination policy, subject to reasonable accommodations and required exemptions, or a vaccination or weekly test policy.

The most recent ruling was in response to arguments filed with the Sixth Circuit earlier in the month. However, multiple parties, including 27 states, have already filed emergency motions with the U.S. Supreme Court to block the ETS.