Federal appeals court reinstates COVID-19 vaccine mandate

On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit reinstated a nationwide vaccine-or-testing mandate for larger companies.

As background, in November 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). The ETS originally mandated COVID-19 vaccinations or at least weekly testing for workers at companies in the United States with 100 or more employees by January 4, 2022.¹

However, the U.S. Court of Appeals for the Fifth Circuit issued a permanent nationwide injunction on the OSHA ETS. Lawsuits were filed in multiple circuit courts, and the Sixth Circuit was selected via lottery to hear the case.²

In light of the Sixth Circuit’s decision, OSHA will use discretion in enforcing the mandate. To give employers sufficient time to come into compliance, OSHA will not penalize companies that don’t meet any of the requirements of the ETS before January 10, 2022, or those that don’t meet the testing requirements before February 9, 2022, so long as they are acting in good faith to come into compliance.

Employers should consult with legal counsel on how to move forward to comply with the OSHA ETS. The checklist below provides details on what is required.

OSHA COVID-19 vaccine ETS: Employer checklist

• Develop, implement and enforce an employer policy on COVID-19 vaccination (templates are available on the OSHA website).
• Determine employees’ COVID-19 vaccination status and maintain records.
• Provide paid leave for COVID-19 vaccination and recovery.
• Disclose required information to employees (including how to notify the employer of a positive COVID-19 case).
• Require face coverings for unvaccinated employees in the workplace.
• Set up COVID-19 testing for unvaccinated employees (and determine who will pay).
• Make COVID-19 vaccine and testing records available to employees and their authorized representatives (including the aggregate number of vaccinated and unvaccinated employees).
• Report COVID-19 fatalities and hospitalizations, if any, to OSHA.

Footnotes

¹ For more information on the OSHA ETS, see “OSHA issues COVID-19 vaccine mandate guidance,” Insider, November 2021.

² See “Sixth Circuit to hear challenges to OSHA COVID-19 vaccine mandate,” Insider, November 2021.