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Update: 6th Circuit Court of Appeals Dissolves Stay of OSHA Mandate

Early Friday evening, the 6th Circuit Court of Appeals issued a decision dissolving the stay of the Occupational Safety and Health Administration's ("OSHA's") emergency rule requiring businesses with 100 or more employees to implement vaccine or testing requirements by January 4th or face penalties of nearly $14,000 per violation. (A copy of the full decision is attached and worth a read). While further judicial review is expected, as of now the January 4th deadline is back in effect, although the Labor Department announced on Saturday that "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."  

According to Judge Larsen's dissenting opinion, the emergency rule "binds nearly all employers with 100 or more employees [with certain exceptions], and requires them to 'establish, implement, and enforce a written mandatory vaccination policy.' 29 C.F.R. § 1910.501(b)(1), (d)(1). It covers all employees, part-time, full-time, and seasonal, except for those who work exclusively from home, outdoors, or alone. Id. § 1910.501(b)(3). Employees must 'be fully vaccinated,' unless they qualify for medical or religious exemptions or reasonable accommodations. Id. § 1910.501(c). While vaccines are free to the public, employers must provide employees with paid time off both to secure the vaccine and to recover from any side effects. Id. § 1910.501(f). An employer may instead permit unvaccinated employees to undergo weekly COVID-19 testing and wear a mask in the workplace. Id. § 1910.501(d)(2), (g)(1), (i)(1). But OSHA consciously designed this exception to be less palatable to employers and employees. The agency expects that employers who adopt a mandatory-vaccination policy will 'enjoy advantages,' including fewer 'administrative burden[s],' than employers who permit the mask-and-test exception. 86 Fed. Reg. at 61,437. And even if an employer elects to take on these additional burdens, it need not absorb the cost of masks and tests, nor provide time off (paid or otherwise) to secure them. Id. § 1910.501(d)(2), (g)(1) n.1. This, despite the fact that OSHA’s ordinary regulations require employers to pay for agency-mandated equipment, tests, and exams."  

One more background point: The purpose of the mandate is to protect unvaccinated people. Id. at 61,419. The rule’s premise is that vaccines work. Id. And so, OSHA has explained that the rule is not about protecting the vaccinated; they do not face “grave danger” from working with those who are not vaccinated. Id. at 61,434.