Q. What is the status of the Sixth Circuit’s consideration of the challenges to the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS), and how does it impact the upcoming deadlines set by the ETS?
A. As discussed in our previous alert, on November 5, OSHA published an ETS that would require private employers with 100 or more employees to establish, by January 4, 2022 either (1) a mandatory COVID-19 vaccination policy; or (2) a vaccination policy that requires employees to either be fully vaccinated or undergo regular COVID-19 testing and wear a face covering at work. The ETS would also require covered employers, by December 6, to: (1) determine the vaccination status of all employees; (2) provide leave for them to get vaccinated and recover from side effects of vaccination; and (3) ensure unvaccinated employees wear face coverings at work. Multiple challenges were filed over the ETS after OSHA’s issuance of the ETS, and, on November 16, the U.S. Court of Appeals for the Sixth Circuit was selected by lottery to hear the consolidated challenges to OSHA’s recent ETS, including the Fifth Circuit’s extension of a nationwide stay of the ETS on November 12.
Since the Sixth Circuit’s selection via lottery, the following events have occurred:
- On November 23, OSHA filed before the Sixth Circuit, a motion to dissolve the stay entered by the Fifth Circuit. Later that day, the Sixth Circuit entered an order setting a briefing schedule. According to that schedule, all responses to OSHA’s motion to dissolve the stay are due December 7, and all replies in support of OSHA’s motion to dissolve the stay are due December 10.
- On November 24, OSHA filed a motion to expedite the briefing schedule, such that all briefing on OSHA’s motion would be completed by December 6, not December 10.
- On December 3, the Sixth Circuit denied a petition to transfer the case back to the Fifth Circuit, and further denied OSHA’s motion for an expedited briefing schedule, maintaining the December 10 deadline for all briefing to conclude.
OSHA has confirmed on its website for the ETS that “[w]hile OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” And while OSHA has extended the comment period for the ETS through January 19, 2022, it has confirmed that “the comment period is separate from the litigation.”
In light of these recent developments, and given that the Sixth Circuit will likely not render a decision on OSHA’s motion to dissolve the stay until sometime after December 10, employers likely will not be subject to the ETS requirements as originally set forth as December 6 in the ETS. Likewise, the Sixth Circuit’s briefing schedule will also likely cause delay to the January 4 deadline for receiving a full dose of vaccine or starting testing under the ETS. Even assuming the Sixth Circuit — by a three-judge panel — grants OSHA’s motion to dissolve the stay, the Sixth Circuit may revisit en banc the merits to the entire panel of appellate judges in that circuit. Indeed, 20 of the 40 petitioners have filed petitions seeking initial hearing en banc of their challenges, which OSHA has opposed and which the Sixth Circuit has not yet ruled. Regardless, the Sixth Circuit’s decision regarding the stay will almost certainly be appealed to the U.S. Supreme Court, causing further delay. Thus, it remains unlikely that either the Sixth Circuit or the Supreme Court will render a decision in sufficient time for employers to be subject to the ETS requirements by the original December 6 and January 4 deadlines.
Notwithstanding the uncertainty surrounding the enforcement of OSHA’s ETS, employers should continue to monitor litigation developments and prepare as if the ETS will become effective in the near future. That means that as we head to the new year, employers should have plans in place for a) implementing their vaccination policy, b) for communicating such policy, c) for providing paid leaves, and d) for tracking employees’ vaccination status that they are ready to implement, should the Sixth Circuit overturn the stay.
Employers should also be mindful of the 22 states with OSHA-approved plans that may enact their own versions of the ETS in the event the Sixth Circuit upholds the nationwide stay of the ETS and some of which may fail to adopt any ETS (such as South Carolina). Additionally, if the stay is lifted, employers should consider the various state laws, including some passed recently in the wake of the ETS (such as in Tennessee, Alabama and Florida) that impact vaccination mandates. While the ETS declares that it preempts such state laws, if it does not go into effect, employers will need to ensure that they are prepared to comply with these state-specific requirements.
The Troutman Pepper Labor and Employment team is ready to assist you with any questions you may have on this rapidly developing topic.