On Friday, A federal appeals court reinstated the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) requiring mandatory vaccinations or weekly testing for the workers of employers with over 100 employees.
The 2-1 decision by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, overturned a November ruling issued by their counterpart in the New Orleans, Fifth Circuit, that had blocked the rule.
Judge Julia Gibbons, a George W. Bush appointee, and Jane Stranch, an Obama appointee, were in favor of granting the administration’s request. Joan Larsen, a Trump appointee, dissented.
In the ruling, the panel noted that OSHA has historical precedent for using wide discretion to ensure worker safety and “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.”
The OSHA Standard, which went into effect on November 5, requires employers with over 100 employees to meet 2 deadlines. By December 5th there is an employer deadline for a written policy, collecting proof of vaccine, education and masking of unvaccinated workers. That deadline has already passed. The other deadline required employers to assure that their employees either be vaccinated or conduct weekly testing by January 4, 2022.
Shortly after midnight on Saturday (December 18th), OSHA announced that in order to allow companies time to come into compliance with the standard, OSHA will not be issuing citations for lack of companies with the December 5th Deadlines prior to January 10, 2022. OSHA will not enforce the vaccine or test mandate requirement until February 9, 2022. OSHA conditions that discretion to extend the deadlines, as long as an employer is “exercising reasonable, good faith efforts to come into compliance with the standard”. Since employers need to educate employees, implement a policy, and collect proof of vaccines, if an employer is not making progress on these actions prior to the deadlines, OSHA could still exercise discretion to cite the employer. It takes 42 days to become fully vaccinated with the Moderna vaccine, so waiting more than 2 weeks to begin these actions, could lead to employer problems in fully implementing the standard by the deadline, if the US Supreme Court does not stay the standard.
Within hours of the ruling, a coalition of 27 companies filed an appeal to the Supreme Court to block the mandate. The coalition argues that the mandate would cause “harm” to thousands of businesses.
”It will impose substantial, nonrecoverable compliance costs on those businesses. Those businesses will be faced with either incurring the costs of testing for the millions of employees who refuse to be vaccinated—and passing those costs on to consumers in the form of yet higher prices at a time of record inflation—or imposing the costs of testing upon their unvaccinated employees, who will quit en masse rather than suffer additional testing costs each week,” the appeal says.
The coalition is also asking the Supreme Court for an emergency stay to the ETS while the Supreme Court considers the appeal. The Supreme Court designates individual Justices to administer matters related to individual Courts of Appeal, and the 6th Circuit is assigned to Justice Kavanaugh. He could act on his own to issue a stay. But he will likely assign a case of this significance to the entire court. If he does, it requires a majority of the justices (five out of nine) to approve the stay.
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Michael Best can help make sure your approach is both within the law and aligned with your organization’s needs and culture. Our Vaccination Policy Tool Kit is designed to cut through the confusion and empower you to make informed decisions. It provides practical advice and templates to help employers create their own workplace vaccination approach.
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