6th Circuit Dissolves Stay of OSHA Vaccine Emergency Temporary Standard (ETS)

On Friday, December 17, the Sixth Circuit Court of Appeal, in a 2-1 decision, dissolved the Fifth Circuit’s earlier stay of the federal OSHA “vaccine-or-test” Emergency Temporary Standard (ETS).  In short, the Sixth Circuit found that OSHA had acted within its Congressionally-conveyed authority and had an adequate basis for adopting the ETS as it did.  In dissolving the stay, the Sixth Circuit has revived the ETS with immediate effect.

Kentucky Attorney General Daniel Cameron promptly filed a petition with the United States Supreme Court to request another suspension of the OSHA ETS and a full review of the case.  The petition describes the regulation as “a historically unprecedented administrative command,” and joins a broad coalition of states and trade groups throughout the country challenging the regulation as an unconstitutional overreach of administrative authority.

In response to the Sixth Circuit’s decision, the U.S. Department of Labor announced a relaxed enforcement approach noting:

“[t]o account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”

This means that OSHA can issue citations today for noncompliance with all but the testing requirements of ETS, but will allow employers a grace period until January 10 so long as they exercise reasonable, good faith efforts to come into compliance with the ETS during the interim period.  Although it is likely OSHA will not engage in any enforcement activity before January 10, it is possible that a compliance officer responding to employee complaints of COVID-19-related issues could cite an employer if it appears the employer has not been making good faith efforts to comply.

Whether the ETS applies to your business, and the timing of its effects, depends on the state(s) in which your business operates.  Federal OSHA does not have jurisdiction over every private employer.  Instead, the federal government has jurisdiction to enforce safety rules against private employers in only 29 states (plus the District of Columbia and other American territories).  The remaining 21 states, including Kentucky, have approved “state plans,” where a state agency enforces safety regulations in that jurisdiction.

What does this mean for Kentucky employers?

Federal OSHA does not have jurisdiction over private employers in Kentucky.  Instead, Kentucky has approved a “State Plan” which is enforced by the Kentucky Occupational Safety and Health (KOSH) division of the Kentucky Labor Cabinet’s Department of Workplace Standards.  KOSH is the state agency responsible for enforcing the provisions of the Kentucky Occupational Safety and Health Act, which aims to ensure that employers provide a safe working environment to their employees.  Kentucky, like other State Plan states, was initially given up to 30 days to adopt the federal ETS or alternative regulations that are at least as effective as the ETS.  Federal OSHA hasn’t modified these deadlines due to the recently dissolved stay.  It is expected in the coming days that KOSH will announce its intentions as to whether Kentucky will adopt the federal ETS or some alternative regulations.

Importantly, Kentucky H.B. 475, signed into law on March 29, 2021 and taking effect July 2, 2021, replaced all provisions of Kentucky’s state workplace safety law.  The new law, KRS Chapter 338, prohibits KOSH from adopting or enforcing any occupational safety and health administrative regulation that is more stringent than the corresponding federal provision.  This means Kentucky employers can be sure that any ETS-related regulations issued by KOSH will be no more stringent than those set by the federal government.

Several bill have been filed in the Kentucky General Assembly concerning vaccine mandates required by employers.  The intended effect of those bills range from prohibiting any employer mandate to allowing employees harmed by a vaccine to file a workers compensation claim.  We will be be monitoring those and any related bills.

In states where the federal government enforces OSHA, the ETS is effective immediately.

• Federal OSHA states (applicable to private-sector employers) include:
  • Alabama, American Samoa, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Idaho, Illinois, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Northern Mariana Islands, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Texas, Virgin Islands, West Virginia, and Wisconsin.
• ETS Requirements
  • Generally, OSHA’s ETS requires private employers with more than 100 employees to either mandate covered employees be fully vaccinated against COVID-19 or require covered employees that are not fully vaccinated to test for COVID-19 at least weekly and wear a face covering.  Covered employers who ignore the ETS while it is in effect could face OSHA citations and penalties of up to $13,653 per violation, and additional citations or penalties as determined by OSHA or state OSHA for willful or egregious failures to comply.
• Deadlines for Federal OSHA states:
  • January 10, 2022 – Establish vaccination policy; provide employees with information about the ETS and workplace policies; provide paid leave for employees to get vaccinated; establish reporting policies for COVID-related records; and determine vaccination status of each employee.
  • February 9, 2022 – deadline for vaccines and weekly testing of employees is set to begin on February 9, 2022.

We are monitoring these developments in Kentucky and will provide updates as warranted.  Although the legal landscape remains flux, employers subject to the OSHA ETS should consider preparing for compliance on the revised timetable.  If you have questions about how to ensure your vaccine policies comply with Kentucky workplace laws, please contact us.