In another bout of COVID-19 vaccine mandate whiplash, the U.S. 6th Circuit Court of Appeals lifted the nationwide stay on the federal vaccine and testing mandate on December 17. The U.S. Occupational Safety & Health Administration (OSHA) can now go ahead with enforcement of the rule pending further litigation, though it appears that the agency will delay enforcement of the rule due to the uncertainty caused by the court’s stay. OSHA says that it will not issue any citations under any part of the rule until January 10 and will not issue any citations specifically for the workplace COVID-19 testing requirements until February 9 if employers are otherwise exercising reasonable, good faith compliance with the mandate. Originally, most employees were going to need to undergo weekly COVID-19 testing if they were not vaccinated by January 4.
The 6th Circuit’s decision to allow the mandate to go forward will likely be reviewed by the U.S. Supreme Court. Several motions have already been filed. One important facet to remember regarding the current federal vaccine mandate is that it is an Emergency Temporary Standard (ETS), which is held to higher level of scrutiny then regular federal workplace safety rules. Even if the Supreme Court were to strike down the current emergency vaccine mandate, the ETS also serves as the template for a proposed “permanent” federal rule that will go through the normal rulemaking process. Courts typically give a high degree of deference to agency rules that follow the normal rulemaking process. OSHA will be taking written comments on the proposed permanent vaccine and testing rule until January 19, 2022.
As a “state plan” state, Washington is expected to enforce its own large employer vaccine mandate that is “at least as effective” as the federal mandate (Read more on the state plan system). As we discussed in an earlier article, the state could implement Washington’s version of a large employer mandate either as a result of a final court decision holding the federal mandate valid, or under the state’s own authority. The Governor’s office has indicated that the state intends to wait until the legal issues surrounding the federal ETS are decided by the Supreme Court before taking any action. Both the Governor’s office and the Department of Labor & Industries have said the state’s employer vaccine and testing mandate rule will include the ability for unvaccinated employees to undergo weekly COVID-19 testing in lieu of vaccination and will only cover employers with 100 or more employees, just like the federal mandate.