Dec. 20, 2021

OSHA Begins Enforcement of Emergency Temporary Standard on Jan. 10

The Biden administration’s requirement for large employers to require workers to be vaccinated has been reinstated following a decision by the 6th U.S. Circuit Court of Appeals in Cincinnati.

The ruling dissolved the stay the 5th U.S. Circuit Court of Appeals had placed on the vaccine mandate in November shortly after the Occupational Safety and Health Administration announced its emergency temporary standard (ETS) for employers with 100 or more employees to require workers to either be vaccinated or undergo regular COVID-19 testing and wear a facemask at work.

“It is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace,” the 6th Circuit wrote in its opinion. “It is not appropriate to second-guess that agency determination considering the substantial evidence, including many peer-reviewed scientific studies, on which it relied. Indeed, OSHA need not demonstrate scientific certainty. As long as it supports its conclusion with ‘a body of reputable scientific thought,’ OSHA may ‘use conservative assumptions in interpreting the data… risking error on the side of overprotection rather than under protection.’”

Although further legal challenges to the vaccine mandate appear likely, OSHA is moving forward with enforcing the ETS. The agency will begin issuing citations for noncompliance with any requirements of the ETS on Jan. 10 and will issue citations for noncompliance with testing requirements beginning Feb. 9, as long as an employer is exercising “reasonable, good faith efforts to come into compliance with the standard.”