[UPDATE 12.23.21: The U.S. Supreme Court will hold a special hearing Jan. 7 on the Biden administration's vaccination mandate impacting employers with 100 or more employees and a separate mandate for healthcare employees at Medicare and Medicaid-certified providers.]


The U.S. Court of Appeals for the Sixth Circuit lifted a November block on the federal Occupational Safety and Health Administration's COVID-19 Emergency Temporary Standard Dec. 17.

In its decision, the court noted OSHA has “demonstrated the pervasive danger that COVID-19 poses to workers—unvaccinated workers in particular—in their workplaces.”

"The record establishes that COVID-19 has continued to spread, mutate, kill, and block the safe return of American workers to their jobs," wrote Judge Jane Stranch.

"To protect workers, OSHA can and must be able to respond to dangers as they evolve."

OSHA released the 490-page ETS Nov. 4, covering the Biden administration’s COVID-19 vaccination and testing requirements that were announced in September.

Supreme Court Appeal

The court's 2-1 decision paves the way for the mandate to move forward, pending final word from the U.S. Supreme Court.

Within two hours of the ruling, a coalition of 27 trade groups filed the first of several emergency appeal applications to the U.S. Supreme Court requesting a stay.

OSHA will now give employers until Feb. 9, 2022 to initiate weekly employee testing requirements. Covered employers faced a Jan. 5, 2022 deadline for compliance or have unvaccinated employees test weekly for COVID-19.

"OSHA will not issue citations for noncompliance with any requirements of the ETS before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard," the agency said in a statement.

Employers will also have until Jan. 10, 2022 to comply with the ETS' other requirements, such as development of a vaccination policy and the collection of employee vaccination data.

Federal Contractor Mandate

On the same day as the Sixth Court decision, the 11th Circuit Court of Appeals refused a Biden administration request to lift a nationwide injunction blocking the White House's vaccine mandate for federal contractors.

That decision leaves in place a Dec. 7 order by a federal judge in Georgia temporarily blocking the administration from enforcing the mandate.

A Dec. 7 court order temporarily blocked enforcement of the federal contractor vaccine mandate.

Biden issued an executive order Sept. 9, setting Dec. 8 as the compliance deadline for federal contractors to have their workforces fully vaccinated, although that was later pushed to Jan. 18.

The requirements for federal contractors provide no option for weekly testing. Medical and religious exemptions were allowed. 

'Be Prepared'

CBIA continues to encourage businesses to "be prepared" and understand their responsibilities related to COVID-19 vaccine and testing mandates. 

"While some employers may opt to take a chance and delay implementation of vaccine mandates pending a decision from the U.S. Supreme Court, they should be mindful of the risks involved with such a decision," said CBIA HR Counsel Diane Mokriski.  

"If the Supreme Court upholds the mandate, further extensions of compliance deadlines are unlikely."

CBIA's Diane Mokriski

"First, we have no idea when such a decision will be made, and current law says the mandate is in effect.

"Secondly, if the Supreme Court's action, or lack thereof, upholds the mandate, further extensions of the compliance deadlines are unlikely."


For more information, contact CBIA’s Diane Mokriski at the HR Hotline (860.244.1900) | @HRHotline.

Filed Under: COVID-19, Employment Law, OSHA, Safety

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