On December 17, 2021, a split Sixth Circuit panel has overturned the stay on OSHA’s Emergency Temporary Standard (“ETS”) or commonly referred to as the federal OSHA vaccination rule, allowing the rule to move forward. Requests for an en banc review and/or other appellate procedures are anticipated. We expect the U. S. Supreme Court will eventually weigh in on this matter.
By way of background, the Sixth Circuit described the ETS as follows:
“The ETS does not require anyone to be vaccinated. Rather, the ETS allows covered employers—employers with 100 or more employees—to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces. [COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61,402 Nov. 5, 2021) (to be codified at 29 C.F.R. pts. 1910, 1915, 1917, 1918, 1926, and 1928)] at 61,438 (allowing employers to “opt out” of any vaccination policies). Employers have the option to require unvaccinated workers to wear a mask on the job and test for COVID-19 weekly. Id. They can also require those workers to do their jobs exclusively from home, and workers who work exclusively outdoors are exempt. Id. at 61,419. The employer—not OSHA—can require that its workers get vaccinated, something that countless employers across the country have already done. Id. at 61,436 (“[T]his ETS offers employers a choice in how to comply . . . .”).
Employers must also confirm their employees’ vaccination status and keep records of that status. Id. at 61,552. Consistent with other OSHA standard penalties, employers who fail to follow the standard may be fined penalties up to $13,653 for each violation and up to $136,532 for each willful violation. 29 C.F.R. § 1903.15(d).”
For now, federal OSHA plans to enforce the rule with a grace period for employers to catch up with the legal mess. Here is what the DOL spokesperson said: “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.”
Critically, the federal rule does not directly apply to California employers. The latest proposed changes to the Cal/OSHA Emergency Temporary Standard did not generally include the vaccination or testing requirements that would be required under the federal rule (the closest was a new testing requirement added when an unvaccinated worker is working in conditions requiring a face covering but is medically exempt from face covering requirements). We will need to see how Cal/OSHA responds to this news from the Sixth Circuit and whether their ETS gets an overhaul before becoming effective.
We will keep you posted with further updates on this issue.
Kyle D. Kring is a Managing Partner at Kring & Chung, LLP. He can be reached at (949) 261-7700.