*Editor’s Note: This article was originally published on December 21. On Wednesday evening, December 22, the U.S. Supreme Court announced it will hear appeals from decisions that may have a major impact on the enforceability of both the OSHA vaccine-or-test rule and the CMS vaccine mandate. Stay tuned for further developments.
In the ever-evolving legal battle over vaccine mandates, the U.S. Court of Appeals for the Sixth Circuit issued a recent decision that merits attention by all employers with 100 or more employees affected by the vaccine-or-test emergency temporary standard (“ETS”) issued by the U.S. Occupational Safety and Health Administration (“OSHA”) (click here for our prior article summarizing the vaccine-or-test ETS requirements).
Federal OSHA Releases Statement on Enforcement
Specifically, on December 17, 2021, the Court effectively lifted the nationwide injunction against that ETS. Initially, OSHA stated that it would suspend enforcement in light of the nationwide injunction. However, with the Court having lifted the injunction, OSHA released a statement on its website regarding its plan to move ahead with enforcement. In relevant part, OSHA stated:
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 non-compliance 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.
Unless or until we see additional pertinent rulings from that Court or the U.S. Supreme Court, OSHA’s go-forward plan for that ETS may control for many employers with 100 or more employees, although that will depend on the state in which the employer operates.
OSHA Plans – Federal or State Plan?
There are currently 22 OSHA-approved state plans (including Puerto Rico). Some state plans cover both the private sector and state and local government workers, and there are six state plans covering only state and local government workers. It remains to be seen whether and which of these 22 state plans will adopt the federal OSHA ETS vaccine mandate. They each have 15 days from when OSHA promulgated the standard to notify OSHA of their intentions to adopt the ETS, and each state has 30 days from when the standard was promulgated to take action. In these states, what impact the original injunction has on these timelines, as well as the January 10 and February 9 enforcement dates issued by OSHA in its statement, remains to be seen.
For covered employers who are not covered by a state plan, but instead are covered by federal OSHA, for now, the ETS becomes effective, as do the new enforcement dates of January 10 and February 9 published by OSHA in its statement.
Impact on CMS Vaccine Mandate
The recent Sixth Circuit ruling and OSHA statements do not directly impact the CMS vaccine mandate (interim final rule) which itself covers many health care facilities. A patchwork of injunctions is currently in place for that rule in some states. And, at least for now, CMS has said it will hold off on enforcing that interim final rule while litigation proceeds. If CMS elects to move forward with enforcement, we do not know how much notice it will give to facilities covered by that rule before they must comply.
If the original OSHA health care-specific emergency temporary standard (issued in June 2021) is extended past its expiration date of December 21, 2021, organizations that might otherwise be covered by the OSHA vaccine-or-test ETS may be exempted from compliance with it. However, if the OSHA health care-specific ETS issued in June 2021 is not extended, health care facilities with 100 or more employees may be covered by both the CMS vaccine mandate and OSHA vaccine-or-test ETS, and they must carefully consider to what extent they may be required to comply with aspects of both rules.
As organizations confront these continuing legal developments, they must also consider any state or local laws or rules that affect their plans, in addition to any applicable state OSHA plan.
Due to the rapidly changing environment concerning these vaccine mandates, including the upcoming hearing by the U.S. Supreme Court, please consult counsel or investigate this issue independently before implementing policies or decisions. For more information on any of these vaccination requirements, please contact:
- Jon Rabin at jrabin@hallrender.com or (248) 457-7835;
- Kevin Stella at kstella@hallrender.com or (317) 977-1426;
- Robin Sheridan at rsheridan@hallrender.com or (414) 721-0469;
- Mary Kate Liffrig at mliffrig@hallrender.com or (720) 282-2033; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
