Update on Status of Federal Contractor Mandate and OSHA’s ETS

On Friday evening, employers were delivered updates on two of the federal vaccine mandates, courtesy of the Eleventh and Sixth Circuits. 

Out of Georgia, the Eleventh Circuit denied a request by the Biden Administration to dissolve a nationwide injunction of the federal contractor vaccine mandate.  That federal contractor mandate has been blocked within Kentucky, Ohio, and Tennessee by virtue of a November 30, 2021 injunction, but on December 7, 2021 a U.S. District Court Judge in the Southern District of Georgia issued a nationwide injunction blocking the mandate’s implementation.  The Eleventh Circuit denied the Administration’s request to immediately lift the nationwide injunction, but set an expedited briefing schedule on the merits of the Administration’s appeal.  Should the appeal move forward as scheduled, we can expect the next decision from the Eleventh Circuit to come no earlier than mid-January.  Of course, before then the Administration may choose to petition for a rehearing before the full Circuit, or for an emergency appeal to the Supreme Court.

But as one injunction stands, another one falls.  On Friday evening, the Sixth Circuit dissolved the injunction to OSHA’s Emergency Temporary Standard (ETS).  That standard, which mandates employers with 100 employees or more to require employees be vaccinated or submit to weekly testing and wear masks, had originally been enjoined by the Fifth Circuit on November 12, 2021.  All challenges to the ETS were then consolidated within the Sixth Circuit, and thus employers have been looking to that circuit as it considered whether to allow the injunction to stand.    In a split decision, a three-judge panel dissolved the injunction, finding that OSHA had clear authority to regulate and protect workplace health and safety, including the transmission of viruses in the workplace.  In its ruling, found here, the Court determined that OSHA acted within its authority when crafting the ETS, as the dangers posed by COVID-19 continue to constitute an “emergency” under the law. 

The Sixth Circuit’s decision, however, is not the end of the line.  Already, a collection of trade groups has filed an application seeking to overturn the decision with Supreme Court Justice Brett Kavanaugh, who oversees the Sixth Circuit.  The Application requests that the Supreme Court stay the effective date of the ETS, either outright or pending a full review by the Supreme Court itself.

So until we hear otherwise from the Supreme Court, the ETS is set to go into effect.  As originally written, the ETS required that covered employers begin complying with the standard by December 5, 2021 (other than testing), and set a deadline to begin testing employees who are not fully vaccinated by January 4, 2022.  Following the Sixth Circuit’s ruling OSHA announced that it would extend these deadlines, as long as the employer is otherwise exercising reasonable, good faith efforts to come into compliance with the ETS.  Employers will have until January 10, 2022 to comply with the standard (other than testing), and until February 9, 2022 to begin testing procedures.

As further litigation is expected with regard to the federal contractor mandate and the ETS, employers should pay close attention to any further developments.  The Supreme Court will likely have final say, on way or the other, on these mandates as well as other federal mandates the Administration has sought to impose.  Until then, should you have any questions do not hesitate to contact a member of the Labor & Employment Practice Group.

KMK Law articles and blog posts are intended to bring attention to developments in the law and are not intended as legal advice for any particular client or any particular situation. The laws/regulations and interpretations thereof are evolving and subject to change. Although we will attempt to update articles/blog posts for material changes, the article/post may not reflect changes in laws/regulations or guidance issued after the date the article/post was published. Please consult with counsel of your choice regarding any specific questions you may have.


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