Supreme Court

The U.S. Supreme Court. Credit: Geoff Livingston

The Department of Labor’s Occupational Safety and Health Administration can enforce its COVID-19 vaccinate-or-test mandate for employers with 100 or more workers, at least for now, after a three-judge panel of the 6th U.S. Circuit Court of Appeals on Friday evening lifted a hold put on the rule by a 5th Circuit panel. OSHA said it will begin enforcing the rule’s requirements Jan. 10.

The 6th Circuit decision was appealed to the U.S. Supreme Court on Saturday morning by 27 Republican state attorneys general, as well as dozens of companies and organizations that oppose the mandate. The filing asks the Supreme Court to reinstate the stay involving the emergency temporary standard.

“This case does not present the question whether vaccines or vaccine mandates are wise or desirable,” the 54-page filing argues. “Instead, it presents the narrow questions [of] whether OSHA had authority to issue the Mandate, and whether it lawfully exercised whatever authority it had.”

The OSHA rule, announced Nov. 4, calls for U.S. companies employing 100 or more workers to develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to choose to either be vaccinated or undergo regular COVID-19 testing and wear a face covering at work. Employers were to ensure that their employees had received their final vaccination doses by Jan. 4, with at least weekly testing required for unvaccinated employees after that.

The Labor Department said Saturday, however, that OSHA will delay enforcement of the mandate “to account for any uncertainty created by the stay.”

OSHA will not cite employers for not complying with any requirements of the standard before Jan. 10 and will not cite employers for not complying with the standard’s testing requirements before Feb. 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard,” the department said, adding that OSHA will work closely with employers to assist them with compliance.

The Labor Department said that the workplace standard “will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.” Employers that don’t comply with its requirements could face a $14,000 penalty for a single citation. That penalty jumps to $140,000 for “willful penalties.”

The 5th Circuit Court originally granted a motion to stay the standard on Nov. 12. Subsequently, OSHA said that it was suspending enforcement of the rule because the court ordered that the agency “take no steps to implement or enforce” the standard “until further court order.”

Settings such as assisted living communities that are subject to OSHA’s separate COVID healthcare emergency temporary standard, announced in June, are exempt from the OSHA vaccination-and-testing emergency temporary standard, but that healthcare rule is set to expire Tuesday unless further action is taken. Facilities such as nursing homes that participate in the Medicare and Medicaid programs are subject to a separate emergency regulation by the Centers for Medicare & Medicaid Services mandating COVID vaccination; that rule is facing its own challenges.

Read more about the OSHA vaccination-and-testing standard’s requirements here.