THE SSP FIRM BLOG
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Update to The OSHA Vaccine Mandate: Where it Stands and Where it’s Headed
Tuesday, December 21, 2021
Tuesday, December 21, 2021
Authored by Joshua M. Smith and Matthew D. Soaper
This serves as an update to our November 19, 2021 post, “The OSHA Vaccine Mandate: Where it Stands and Where it’s Headed.”1 As a reminder, this post only concerns the vaccine mandate to private employers with 100 or more employees. Other mandates, including for federal employees, federal contractors, and health care workers, are pending in separate court actions.
The Sixth Circuit lifts the prior stay of the OSHA Vaccine Mandate
Last Friday evening, in a 2-1 decision, the Sixth Circuit Court of Appeals dissolved the stay previously issued by the Fifth Circuit Court of Appeals as to OSHA’s vaccine mandate to employers with 100 or more employees.2 This means, for the moment, that OSHA can continue steps toward implementing the Mandate.
Applications for Emergency Relief filed in the Supreme Court
Within hours of the decision, multiple petitioners filed emergency applications with the U.S. Supreme Court to stay the Sixth Circuit’s order, seeking to reinstate the stay until the case can be heard by the Supreme Court.3 Such emergency applications are initially considered by an assigned justice of the Supreme Court, who may act on an application alone or refer it to the full Court for consideration.4 In the Sixth Circuit’s case, the assigned Justice is Brett Kavanaugh, who will be initially considering the applications.5 As of this writing, those applications remain pending, and it is yet to be determined whether Justice Kavanaugh will issue a decision himself or refer it to the full Court for review. However, if Justice Kavanaugh does act on the application alone, the opposing party may submit an appeal to the full Court for review.6
OSHA Announces Extended Dates for Compliance
The day after the Sixth Circuit’s decision, OSHA announced that it would be extending the dates for compliance with the Mandate to February 9, 2022, for weekly testing, and January 10, 2022, for all other requirements (obtaining employee’s vaccination status, implementing written policies, etc.). Specifically from OSHA’s website:
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.7
Thus, while OSHA plans to continue steps toward the Mandate’s implementation, it is extending the dates for compliance. OSHA’s implementation could be delayed again if the Supreme Court or Justice Kavanaugh decides to stay the Sixth Circuit’s decision.
Next Steps
Over the coming days and weeks, the status of the 100+ employee OSHA Vaccine Mandate is likely to remain in a state of flux. No one can accurately predict what the Supreme Court will do with the application, but many anticipate that the Court will be inclined to at least review the same given the significant legal questions raised by the Mandate and apparent disagreement among the circuits as to its legality.
For now, employers should remain prepared to address the Mandate’s requirements, including having a contingency plan in the event that the Mandate is upheld by the Supreme Court. As always, employers are advised to consult with counsel before making any decisions with respect to the vaccine mandates.
Published 12/21/2021: If you have any questions about any of the information contained in this blog, contact Joshua Smith via phone: 513-533-6715 or by email at jms@sspfirm.com, and Matthew Soaper via phone: 513-533-2487 or by email at mds@sspfirm.com.
Advertisement Only. Content in this blog was accurate and researched as of the date published. This article is intended for general information only and not as legal advice. You should discuss specific details with your attorney to determine how legal developments may apply to your situation.
1. https://www.sspfirm.com/post/osha-vaccine-mandate-where-it-stands-and-where-its-headed
2. https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0287p-06.pdf
3. https://www.fmi.org/docs/default-source/gr/application-pdfa.pdf?Status=Master&sfvrsn=bc7114a8_3
4. Supreme Ct. R. 22.
5. https://www.supremecourt.gov/about/circuitassignments.aspx
6. Supreme Ct. R. 22.
7. https://www.osha.gov/coronavirus/ets2#litigation
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