In a decision released late in the day on Friday, the United States Court of Appeals for the Sixth Circuit lifted a stay against the Occupational Safety and Health Administration’s (“OSHA”) rule requiring employers with 100+ employees either to require their employees to be vaccinated against COVID-19 or to submit to weekly COVID-19 testing and to wear facemasks in the workplace.  The Sixth Circuit’s ruling paves the way for OSHA’s rule, which was at a standstill due to an injunction issued by a different court, to go into effect.  Indeed, following the ruling, OSHA promptly announced that it expects employers to comply with the rule by January 10, 2022, but that it would not issue citations against non-complying employers until February 9, 2022. Employers that operate in states with their own occupational health and safety laws (including Alaska, California, Oregon, Utah, and Washington), will not be required to comply until the respective state agency formally adopts its version of the OSHA requirements.

The OSHA rule (29 C.F.R. 1910, subpart U), available here, generally requires employers with 100 or more employees to adopt one of two types of policies to combat the spread of COVID-19: either (1) a requirement that all employees be fully vaccinated, except to the extent that they are entitled to a reasonable accommodation on the basis of disability or religion; or (2) a requirement that employees who are not fully vaccinated against COVID-19 submit to weekly testing and wear masks in the workplace.  Among other requirements, the rule also requires employers to provide employees with up to four hours of paid time off for time spent receiving COVID-19 vaccinations, in addition to whatever paid time off employees already have available. To assist with implementation, OSHA has published a summary of the rule, a lengthy FAQ document, and template mandatory-vaccination and vaccination-or-testing policies.

Although the Sixth Circuit’s order provides some clarity about the way forward, there is still significant uncertainty about the rule’s status.  First, several organizations that challenged the rule in the lower court have already requested that the U.S. Supreme Court accept the case for review. If the Supreme Court accepts the case, it is possible (and perhaps even likely) that it will issue a stay against the rule going into effect while it considers the merits of the parties’ arguments.  Second, in states that have their own state-sponsored occupational health laws, the state occupational health agency must formally adopt a rule that is at least as protective as OSHA’s rule.  Although we expect that most states with their own approved plans will adopt some version of the vaccine-or-test mandate relatively soon, it is not clear when this will occur.  For states without a state occupational health law (including, for example, Idaho), OSHA’s January 10/February 9 timeline will apply unless the U.S Supreme Court says otherwise or OSHA chooses to extend the deadlines.

Please feel free to contact any of the attorneys in our Labor and Employment group with questions.