Circuit Court Releases Deadlines for Vaccine Mandate Decision

The U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit) recently released deadlines regarding its future vaccine mandate decision. In short, the Sixth Circuit will hear arguments against the Occupational Safety and Health Administration‘s (OSHA’s) COVID-19 vaccine mandate. At the present time, the mandate is part of a recent OSHA emergency temporary standard (ETS). Correspondingly, after OSHA released the ETS, the Equal Employment Opportunity Commission (EEOC) announced updated COVID-19 guidance.

Overview of the COVID-19 Vaccine Mandate

Particularly, employers covered by the mandate would develop, implement, and enforce a mandatory COVID-19 vaccination policy, unless they adopted a policy requiring employees to choose either to:

• receive a COVID-19 vaccination; or
• undergo regular COVID-19 testing and wear a face covering at work.

Specifically, the ETS would not require employers to pay for testing or face coverings. However, some employers will need to pay for testing to comply with other laws, regulations, and collective bargaining agreements. In addition, employers would provide paid time for workers to get the COVID-19 vaccine. Additionally, the ETS would require employers to do the following:

• Determine the vaccination status of each employee by obtaining acceptable proof of vaccination;
• Maintain records and a roster of each employee’s vaccination status;
• Require employees to provide prompt notice when they test positive for COVID-19 or receive a COVID-19 diagnosis, and remove such employees from the workforce, regardless of vaccination status, until they meet required criteria;
• Ensure each worker who is not fully vaccinated tests for COVID-19 weekly (if the worker is in the workplace at least once a week) or within seven days before returning to work (if the worker is away from the workplace for a week or longer); and
• Require that, in most circumstances, each unvaccinated employee wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

Businesses that did not comply would face significant OSHA fines. Finally, employers must comply with:

• most requirements within 30 days of publication; and
• testing requirements within 60 days of publication.

Road to the Vaccine Mandate Decision

Markedly, after OSHA’s release of the ETS, many district courts received challenges against the mandate. In fact, many entities filed challenges in every circuit court district (First to Eleventh) and the D.C. Circuit Courts. Earlier, the U.S. Court of Appeals for the Fifth Circuit stated that the ETS is “both overinclusive … and underinclusive.” In other words, the court ruled that the ETS doesn’t account for varying levels of COVID-19 exposure as a sweeping mandate. Simultaneously, it doesn’t attempt to shield employees with 99 or fewer coworkers from the same exposure. In essence, the court ruled that OSHA’s vaccine ETS does not constitute a “delicate exercise” of an “extraordinary power” under Section 6 of the OSH Act. Due to that, the Fifth Circuit issued a temporary stay on the ETS. Although a “Multi-District Lottery” selected the Sixth Circuit to hear the challenges against the ETS, the Fifth Circuit stay remains.

Deadlines for a Vaccine Mandate Decision

Since the placement of the Fifth Circuit’s stay, OSHA filed an emergency motion to dissolve that decision. After that, the Sixth Circuit released a Scheduling Order providing a timeframe for a possible vaccine mandate decision. Important dates include:

• Tuesday, November 30th, 2021 – The Sixth Circuit must receive any motions to join OSHA’s emergency motion or modify, revoke, or extend the stay.
• Tuesday, December 7th, 2021 – The Sixth Circuit will issue responses to the various motions regarding the stay.
• Friday, December 10, 2021 – Replies to the Sixth Circuit’s responsive motions are due.

In light of the December 10 deadline, the ETS will probably be “stayed” until at least that date.