The Occupational Safety and Health Administration’s (“OSHA”) on-again-off-again COVID workplace safety regulations requiring businesses with 100 or more employees to mandate COVID vaccines for those employees or require face masks and weekly testing (the “ETS”) are back on, reinstated by the Sixth U.S. Circuit Court of Appeals in a decision issued on December 17, 2021. The Sixth Circuit’s decision lifted the November 6, 2021 stay issued by the Fifth U.S. Circuit Court of Appeals. The stay barred OSHA from enforcing the ETS pending full judicial review, finding that OSHA had exceeded the scope of its regulatory authority in issuing the ETS, in response to multiple lawsuits brought by private employers, labor unions, state governments and individual citizens across the country. Those lawsuits had been consolidated into a single proceeding before the Sixth Circuit, under federal multi-district litigation rules.

What did the Sixth Circuit Decide?

The Fifth Circuit’s stay of the ETS back in November was premised on that Court’s conclusions: (1) that “individuals, states, and employers would be ‘substantially burdened’ due to the compliance costs, loss of constitutional freedom, and intrusion into States’ ‘constitutionally reserved police power[,]’” and (2) that “a stay will do OSHA no harm whatsoever” and is “in the public interest.” The Sixth Circuit adopted its own cost-benefit rationale, rejecting the Fifth Circuit’s claim of “irreparable injury” as “entirely speculative,” and concluding instead that any burden imposed by the ETS is far outweighed by the “comparatively high” costs of delaying implementation of the ETS, which OSHA estimated will “’save over 6,500 worker lives and prevent over 250,000 hospitalizations’ in just six months.”

What Does the Sixth Circuit’s Decision Mean for Large Employers?

The ETS is now back in effect. Businesses that meet the regulatory definition for a “large employer” will need to make a good faith effort to come into compliance with the ETS’s requirements as quickly as possible. What are those requirements? As noted by the Sixth Circuit, the ETS is not strictly a COVID vaccine mandate for workers. Employers—not OSHA—can require workers to get vaccinated (with exemptions for medical and religious reasons), which the Court noted is “something that countless employers across the country have already done.” OSHA has not mandated COVID vaccines for employees with the ETS but has instead *taken a flexible approach. Covered employers—those with 100 or more employees—can determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces. The ETS allows employers to “opt out” of a COVID vaccination mandate by alternatively requiring unvaccinated workers to wear a mask while on the job and to undergo weekly testing for COVID-19. In addition, employers do not need to worry about ETS requirements for those workers who do their jobs exclusively from home or workers who work exclusively outdoors.

Is Your Company a “Large Employer” Under the ETS?

The ETS is applicable to “large employers,” i.e., all private sector employers with 100 or more employees, excluding only federal contractors and subcontractors, health care and health care support providers, or small employers with 100 or less workers. When counting employees for ETS applicability purposes, employers must include all full- and part-time workers who report one or more times per week to a workplace in the U.S. where co-workers or customers are present. A single business entity with multiple work locations in the U.S., must aggregate all such employees at all U.S. locations. Staffing or temporary employees are counted as an employee of the staffing or temporary agency. Employers must also include in the count those workers who work remotely – from home or at a location where there are no co-workers or customers present, and those workers who work exclusively in outdoor work settings (de minimis indoor work time of less than 10%), even though the ETS’s actual regulatory requirements do not apply to exclusively remote or outdoor workers.

What are employer compliance deadlines under the ETS?

In broad terms, ETS-covered employers must develop, implement, and enforce a mandatory COVID vaccination policy, with medical and religious exemptions, or opt for an alternative policy allowing employees to voluntarily elect either to get vaccinated or undergo weekly COVID testing and wear a face mask while at work. Within that rubric, there are numerous other regulatory requirements applicable to large employers. More information about the ETS’s technical compliance requirements can be found in these helpful resources:

Employment Law in Focus – Episode 15: COVID & Workplace Safety, Part 1
Employment Law in Focus – Episode 16: COVID & Workplace Safety, Part 2

On the enforcement front, most ETS compliance deadlines passed in early December when the regulations were still under the Fifth Circuit’s enforcement stay. On December 17, 2021, the U.S. Department of Labor announced that OSHA would allow employers time to come into compliance with the ETA’s requirements. OSHA has indicated that it will not begin issuing citations for non-compliance with any ETS requirement until January 10, 2022 and will not issue citations to employers for noncompliance with the COVID testing requirement until February 9, 2022, “so long as an employer is exercising reasonable, good faith efforts to come into compliance” with the rule. Thus, large employers should move as quickly as possible during this apparent grace period to achieve full ETS compliance.

This blog will be updated with the details of any additional compliance guidance from OSHA, which we anticipate will be forthcoming shortly. In the interim, if you need assistance with OSHA ETS compliance or with other COVID-19-related issues or questions for your business, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com or your current Bean, Kinney & Korman attorney.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.