On November 16, 2021, the Sixth Circuit was chosen by lottery to hear the consolidated challenges to the Occupational Safety and Health Administration's (“OSHA”) Emergency Temporary Standard (“ETS”) mandating COVID-19 vaccination or weekly testing for employers with 100 or more employees. On November 23, 2021, OSHA filed a motion for the Sixth Circuit to dissolve the stay that had been entered by the Fifth Circuit before the various challenges were consolidated. Later that same day, the Sixth Circuit entered an order setting a briefing schedule on the motion to dissolve the stay that seems to ensure that employers will not be subject to at least the first deadline originally set by the ETS.
The Sixth Circuit has ordered all responses to OSHA's motion to dissolve the stay to be filed by December 7, 2021, and all replies in support of the motion to dissolve the stay to be filed by December 10, 2021. This schedule seems to guarantee that the Sixth Circuit will not rule on the motion to dissolve until after the passage of the ETS's first significant deadline of December 6, 2021. According to the ETS, by December 6th employers subject to the ETS are to determine the vaccination status of all employees, provide leave for employees to get vaccinated and recover from any side effects of vaccination, and decide whether to implement a mandatory vaccination policy or implement weekly testing for unvaccinated employees.
Likewise, this briefing schedule also puts the ETS's second significant deadline of January 4, 2021 in peril. Under the ETS, by January 4th employers are to ensure that all employees are either fully vaccinated or begin weekly testing. If the Sixth Circuit grants the Biden Administration's motion to dissolve the stay, such a ruling would not come until sometime after December 10th, leaving employers with very little time to prepare for the January 4th deadline—even without considering that the stay decision will almost certainly be appealed to the Supreme Court's so-called “shadow docket” regardless of how the Sixth Circuit rules. As a result, even if the stay is lifted, it seems that OSHA will have little choice but to push back the January 4 compliance deadline so as to avoid causing undue burden to employers and opening itself up to additional challenges.
On November 24, 2021—the day before Thanksgiving—the Biden Administration filed a motion to shorten the briefing schedule. Under the Biden Administration's proposed schedule, briefing on the motion to dissolve the stay would be completed by December 6th, not December 10th. But even under this proposed tightened schedule, it still seems very doubtful that the Sixth Circuit would issue a ruling in sufficient time for the original December 6th and January 4th deadlines in the ETS to remain in place.
Nonetheless, employers with more than 100 employees would still be wise to continue planning internally as if all of the ETS's requirements and deadlines will stand. If the stay is lifted, we ultimately do not know how much time employers will be given to come into compliance, and companies will not want to be caught off guard. Similarly, employers subject to state laws that limit the ability to mandate vaccination or testing can prepare internally without actually implementing any policy that offends state law unless and until the Sixth Circuit (or Supreme Court) lifts the stay, at which point the federal ETS would take precedence over the conflicting state law.
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