Court Reinstates Biden Private Employer Vaccine-or-Test Mandate


Court Reinstates Biden Private Employer Vaccine-or-Test Mandate

The Sixth Circuit Court of Appeals voted on December 17, 2021 to reinstate the Biden administration’s vaccine-or-test mandate for private employers. In lifting a stay imposed by a different appellate court, the Sixth Circuit allowed the Occupational Health and Safety Administration (OSHA) to require that private employers with 100 or more workers institute a mandatory vaccination policy, which may include a testing-and-masking option at the employer’s discretion.


What This Means for OSHA compliance deadlines

The final deadline to comply with OSHA’s Emergency Temporary Standard to enforce the vaccine-or-test mandate originally was set for January 4, 2022.


However, to account for any uncertainty created by the injunction, OSHA effectively moved the deadline to January 10, 2022 for most parts of the mandate. In addition, employers who will offer a testing option have until February 9, 2022 to ensure all unvaccinated employees begin weekly COVID-19 testing.


“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,” the Department of Labor said in a written statement.


What Employers Must Do by January 10

Covered employers are required to comply with the following by January 10.


  • Establish and enforce a written mandatory vaccination policy, which may or may not include a weekly testing option for unvaccinated employees.


  • Determine the vaccination status of all employees, obtain acceptable proof of vaccination, and maintain and update a roster of employees and their vaccination status.


  • Support employee vaccinations by allowing up to four hours of paid time off to receive the vaccination and up to two days of paid time off to recover from any vaccine side effects.


  • Require employees to promptly provide notice of a positive COVID-19 test or COVID-19 diagnosis, and promptly remove said individuals from the workplace until they meet criteria for safe return.


  • Ensure that employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes.


  • Provide each employee with information about the Emergency Temporary Standard, as well as workplace policy procedures; vaccination efficacy, safety and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation.


  • Report work-related COVID-19 fatalities to OSHA within eight hours and work-related COVID-19 in-patient hospitalizations within 24 hours.


  • Make certain records available to employees and OSHA as required.


Testing Requirements by February 9

Employers who opt for a testing option must ensure that all unvaccinated employees who are in the workplace at least once a week begin testing weekly by February 9. Employees who are in the workplace less often must be tested for COVID-19 within seven days prior to returning to the workplace and provide appropriate documentation of the negative test result upon return.


The ETS does not apply to employees who work exclusively outdoors or who work exclusively from home or otherwise do not report to a workplace where other individuals, such as coworkers or customers, are present. Therefore, these individuals would not have to be tested weekly.


What’s Next

In its ruling, the Sixth Circuit argued that Congress gave OSHA broad powers to issue emergency workplace rules to protect people from dangers like infections diseases.

“The record establishes that COVID-19 has continued to spread, mutate, kill and block the safe return of American workers to their jobs,” the Court held. “To protect workers, OSHA can and must be able to respond to dangers as they evolve.”

Within hours of the court’s decision, several groups had filed petitions with the U.S. Supreme Court, asking it to block the mandate. The high court has given the Biden administration until December 30 to respond to the challenges and likely will not rule on the case until January.


Meanwhile, employers who do not take appropriate steps to implement and enforce their policy in a timely fashion risk OSHA citations and penalties for failure to comply or to make a good-faith effort to get into compliance by the deadline.


If you have questions about the ETS and how it relates to your business, contact the OSHA lawyers at Pappas Grubbs Price PC. Our firm has deep expertise in OSHA matters ranging form compliance to OSHA lawsuits.