OSHA ETS Remains Stayed as Litigation Extends Beyond 1st Deadline

OSHA’s vaccinate or test mandate for large employers (the “ETS”) is set to remain stayed through the first deadline, today, December 6, 2021.  That first deadline would have required employers with 100 or more employees to begin complying with all the ETS’s requirements (aside from enforcing the vaccinate or test portion of the ETS), such as record keeping and masking of unvaccinated employees (a summary of those requirements can be read here).  

On November 12, 2021, as detailed here, the Fifth Circuit Court of Appeals stayed the ETS.  Shortly thereafter on November 16, 2021, challenges to the ETS (which had been filed in every circuit court of appeals) were consolidated before the Sixth Circuit Court of Appeals in Cincinnati.  Seeking to implement the ETS as soon as possible, OSHA filed a motion to lift the stay.  While the Sixth Circuit has yet to rule on that motion, it essentially chose to keep the stay in place while deciding on OSHA’s motion by issuing a briefing schedule requiring any responses to OSHA’s motion to lift the stay be filed on or before December 7 and setting December 10 as the deadline for replies to the responses.  These dates fall beyond the ETS’s initial December 6 deadline, noted above, and effectively extend the stay of the ETS.

In the meantime, in an order issued December 3, 2021, the Sixth Circuit also denied two motions to transfer, one by petitioners seeking to transfer all the challenges to the ETS to the Fifth Circuit Court of Appeals (who issued the stay in the first instance) and the other, filed by the AFL-CIO, seeking transfer to the D.C. Circuit Court of Appeals.  The Sixth Circuit also appears set to adjudicate the challenges to the ETS with a three-judge panel, which is standard procedure.  That is because in the same December 3 order, the court denied a motion to hold the case in abeyance pending ruling on several motions filed by petitioners asking the court to hear the case en banc, i.e. before all the judges sitting on the court (listed here).

Ultimately what this means for employers is that OSHA’s ETS remains stayed and will remain stayed through at least December 10 (and likely longer).  Even if the stay of the ETS is lifted, it is likely OSHA will have to issue new dates for compliance with the ETS, so employers may wish to remain vigilant and take note of any new deadlines for compliance in such a scenario.

In other news regarding vaccine mandates, Employers will also note the vaccine mandate issued by the Centers for Medicaid and Medicare Services (“CMS Mandate”) was also stayed pending litigation nationwide on November 30, 2021, by a federal district court in Louisiana.  The federal contractor vaccination requirement has not been stayed in Florida (although it was stayed in Kentucky, Ohio, and Tennessee by a federal district court in Kentucky), but Florida’s challenge of the contractor mandate is set to be heard before a federal judge in Tampa, Florida on December 7, 2021.

Lowndes will continue to provide updates as legal developments occur and remains available to employers with any questions they may have in the meantime.