- Occupational Safety and Health Administration extends deadlines on compliance after judicial panel lifts stay on COVID-19 vaccine rule for employers with 100 or more workers
- OSHA says it won’t issue citations for noncompliance before Jan. 10, and won’t start issuing citations for failing to follow a vaccinate or test rule before Feb. 9
- Opponents have vowed to press the legal challenge of the rule to the Supreme Court
Summary by Dirk Langeveld
The Occupational Safety and Health Administration has updated compliance deadlines for a COVID-19 vaccine rule applying to businesses with 100 or more workers after a stay on the rule was dissolved by a federal court.
Qualifying businesses were originally required to have vaccination policies in place by Dec. 5, and require employees to get vaccinated or test weekly for COVID-19 by Jan. 4. However, implementation and enforcement of the emergency temporary standard was suspended after the U.S. Court of Appeals for the Fifth Circuit ruled that OSHA had exceeded its authority and issued a stay on the rule.
Following a 2-1 decision by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit on Friday, OSHA said it won’t issue any citations for noncompliance for any of the rule’s requirements before Jan. 10. It also won’t issue any citations for failure to follow the test or vaccine rule before Feb. 9. The extension of the compliance deadlines is contingent on the employer exercising “reasonable, good faith efforts” to comply with the standard.
“OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard,” the agency declared. “OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.”
OSHA said it will work closely with employers to provide assistance on complying with the rule’s requirement. It is also continuing to accept comments on the rule through Jan. 19.
Under the emergency temporary standard, larger businesses must establish a COVID-19 vaccination policy, create a confidential roster of employees’ vaccination statuses, provide paid time off for workers to get the vaccine, and require unvaccinated workers to wear a face covering when in the workplace. Businesses are not required to offer workers the choice between getting vaccinated or testing weekly for COVID-19 unless the employee has received a medical or religious exemption.
Certain workers are exempted from the rule, including those that work remotely, exclusively work outdoors, or have no physical interactions with others at their workplace. Unvaccinated workers who were previously infected with COVID-19 and recovered are not exempt.
Due to the limited number of OSHA inspectors, businesses are largely expected to establish and enforce their own policies based on the guidance provided by the rule. A White House official previously said OSHA investigations into workplaces will be based on worker complaints, and noncompliant companies can be subject to a penalty of up to $13,653 for serious violations and 10 times that amount for willful or repeated violations.
The rule, introduced on Nov. 5, was quickly met with a flurry of legal challenges. After the stay issued by the Fifth Circuit, companies were essentially left with three choices: continue preparing a vaccination policy based on the original deadlines, begin preparations but hold off on implementation until a final court ruling, or ignore the rule entirely until a clear ruling on the matter. While the Sixth Circuit ruling reestablishes a requirement for qualifying businesses to comply with the rule, the matter is almost certain to be appealed to the Supreme Court and this body will likely seek to make a decision before the Jan. 10 deadline to prevent employers from taking steps to comply with the rule only to have it overturned.
The judicial panel granted a request that OSHA issued on Nov. 23 to dissolve the stay, which argued that rapid implementation was necessary in order to cut down on hospitalizations, deaths, and economic disruptions due to COVID-19. The judges supporting the motion agreed that the rule is a necessary workforce protection, with the emergence of the Omicron variant providing a timely illustration on the continuing risks of the virus. They also agreed with the federal governments contention that it has the authority to issue the vaccine requirements under a 1970 law permitting emergency temporary standards.
While some legal challenges argued that the rule would not provide sufficient protections unless it was extended to smaller employers, the Sixth Circuit upholds the rationale for limiting it to businesses with 100 or more employees. OSHA set this limit based on the assumption that companies this size have the administrative capacity and resources necessary to implement the standard, that the threshold is sufficiently expansive to reduce COVID-19 infection rates, and that it would prevent outbreaks at larger facilities.
The business community has had mixed reactions on vaccine mandates. Several larger companies have established their own policies, though some have retreated from them due to federal legal challenges and concerns about worker pushback. Some businesses support the measure as a necessary step in improving workplace safety and minimizing disruptions, while others fear it will worsen existing labor shortages.
A recent Willis Towers Watson survey found that 57 percent of the employers polled said they would establish vaccine mandates at their workplace. However, this included 32 percent that said they would only do so if the OSHA rule went into effect.
The National Retail Federation, one of the groups suing to stop the OSHA rule, said it was disappointed in the Sixth Circuit’s decision and would explore further legal options, but that it would also begin preparing its members to comply with a mandate it described as “onerous.” The group also urged the Biden implementation to further delay the implementation deadline, saying it was possible to “work together to find viable ways to increase vaccination rates and mitigate the spread of the virus in 2022.”