OSHA’s Vax-or-Test Emergency Temporary Standard Is Back in Business – For Now


In a decision that surprised many legal observers, the U.S. Court of Appeals for the Sixth Circuit has lifted the Fifth Circuit’s stay of the federal Occupational Safety and Health Administration’s Emergency Temporary Standard (ETS) requiring employers with 100+ employees (1) to mandate vaccinations or weekly testing/face coverings for their workforce and (2) to provide paid time off to get vaccinated and recover from any adverse effects. This means that larger employers must now come into compliance with the requirements of the ETS, unless the U.S. Supreme Court steps in with another stay. In the meantime, the federal contractor vaccination mandate is currently stayed, while the Center for Medicare and Medicaid Services’ vaccination mandate for the employees of Medicare- and Medicaid-certified providers is partially stayed – although both stays have been appealed by the Biden Administration.

How We Got Here. Under the vax-or-test ETS, employers were supposed to come into compliance with everything but the testing requirement by December 6, 2021. The testing requirement, and de facto vaccination deadline, had a compliance date of January 4, 2022. We detailed the extensive provisions of the ETS in our November 4, 2021 E-lert.

As we discussed in our subsequent November 13, 2021 E-lert, petitions were immediately filed across the entire country to challenge the ETS. The Fifth Circuit granted a nationwide stay of the ETS prior to the consolidation of all the petitions before the Sixth Circuit. However, the Sixth Circuit has now rejected the grounds on which the Fifth Circuit granted the initial stay.

Contrary to the Fifth Circuit, the Sixth Circuit found that the ETS was within the scope of OSHA’s statutory authority. It also found that the COVID pandemic constitutes an emergency that can be ameliorated by agency action, that OSHA was justified in finding that workers face a grave danger in the workplace from COVID, that the ETS “is necessary to protect employees from the grave danger.” The Sixth Circuit further rejected Constitutional challenges to the ETS under the Commerce Clause (that OSHA was inappropriately seeking to regulate noneconomic activity) and the non-delegation doctrine (questioning Congress’ delegation of authority to OSHA when it passed the OSH Act).

Of particular significance, the Sixth Circuit noted that, in passing the OSH Act, Congress “express[ed] its intention to preempt state and local standards that conflict with OSHA standards.” This provides support for OSHA’s position that the ETS preempts all state or local laws or orders to the contrary.

What’s Next for the ETS? OSHA has already issued a “litigation update” stating that it will not issue citations for noncompliance for the provisions of the ETS until January 10, 2022, with the exception of the testing requirement, which has been extended to February 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

We note that this decision was issued by a three-judge panel of the Sixth Circuit, which voted 2-1 in favor of lifting the stay. Many times in cases of significance, the full (or en banc) court may take on the case initially or it may review a panel decision; in this case, the members of the court already voted to allow the panel to decide this case. An emergency appeal has already been filed with the U.S. Supreme Court.

What Should Employers Do Now? At this time, given the uncertainty as to whether the Supreme Court will intervene, employers should take immediate steps to come into compliance with the requirements of the ETS, as follows:

  • Determine whether the company has the requisite 100+ employees, and which employees are covered by the ETS.
  • Implement either:
    • A written mandatory vaccination policy (with medical and religious exemptions).
    • A written policy requiring unvaccinated employees to test weekly and wear a face covering. Note that the face coverings requirement should be implemented immediately, while the testing requirement is not effective until at least January 4, 2022.

There are many provisions that must be included in the policy. OSHA has provided model policies for each of the options above that can be individually tailored by each employer.

  • If the employer chooses the testing/face-coverings option, there are strict testing requirements that must be met, including the use of viral tests and the prohibition of self-administered/self-read tests, as well as the need to retain test results. Employers will need to address many logistical issues regarding a testing requirement, including testing locations and schedules. In addition, while the ETS does not require employers to cover the cost of tests, other laws (including state laws) may require them to do so.
  • Create a “vaccine roster” showing the vaccination status of all employees. Employers must also collect and retain proof of vaccination for each vaccinated employee.
  • Provide up to 4 hours paid time during the workday to get a vaccination shot and up to two days of paid leave to recover from any adverse effects.
  • Require employees to provide prompt notice of COVID infection. COVID-positive employees must be immediately removed from the workplace, and may not return to the workplace until they meet the CDC’s criteria for release from isolation
  • Provide employees with the following information: the requirements of the ETS and the policies and procedures used to implement the ETS; a copy of the CDC document, “Key Things to Know About COVID-19 Vaccines”; that there is no discharge, discrimination, or retaliation for exercising rights under the ETS; and that there are criminal penalties under OSH Act for knowingly supplying false statements or documentation.
  • Report any work-related COVID-19 fatality within 8 hours and any in-patient work-related COVID-19 hospitalization within 24 hours.
  • Retain the following records: vaccination roster, proof of vaccination, and test results. Employees or their representative are entitled to their own vaccination or test records, as well as the aggregate number of fully-vaccinated employees and all employees in their workplace, while OSHA is entitled to all of the records.

This is obviously a fast-moving and complicated situation, further evidenced by the stay of the President’s Executive Order mandating vaccination of employees of federal contractors, and the partial stay of the CMS’ interim final rule mandating vaccination of employees of certain healthcare entities (the stay is effective in Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming; the rule is effective in all other states). We will continue to send out E-lerts on any significant developments. You may also wish to check our continually-updated FAQs frequently.