Compliance Matters TM
The Biden Administration’s “Shot-Or-Test” Mandate For Large Employers Is Revived
(COVID-19 Update)
We previously reported that the fate of the Biden administration’s “shot-or-test” rule issued by OSHA for larger employers (100+ employees) in November was now in the hands of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati. Last Friday, that Court lifted the injunction, clearing the way for the new OSHA rule to take effect. As a result, the emergency OSHA regulation mandating either vaccination or weekly testing for employees of larger employers is scheduled to go into effect in the new year, barring further court intervention. 

Shortly after the Friday decision, the Department of Labor declared that it will not issue citations for noncompliance with any of the new requirements before January 10, 2022 and will not issue citations for noncompliance with the COVID-19 testing requirements until February 9, 2022, “so long as an employer is exercising reasonable, good faith efforts to come into compliance” with the requirements.

On November 5th, the Occupational Safety and Health Administration (“OSHA”) published an Emergency Temporary Standard (“ETS”) implementing President Biden’s Executive Order requiring the employees of large employers (100+) to get vaccinated for COVID-19 or undergo weekly testing. A detailed description of the ETS and its requirements is provided in our previous issue of Compliance Matters.

The very same day that the ETS was issued, the Fifth Circuit Court of Appeal in New Orleans issued an order barring OSHA from implementing the ETS. That order was then reaffirmed by the same court a week later. As a result, OSHA paused implementation of the “shot-or-test” mandate.

Sixth Circuit Decision
As lawsuits seeking to block the ETS were brought in multiple districts, the courts used an arcane lottery process to decide which court would take over all of the different cases. The Sixth Circuit in Cincinnati was selected to decide the future of the new vaccination or test mandate.

Sharply disagreeing with the Fifth Circuit court in New Orleans, the three-judge panel in Cincinnati held that OSHA “clearly” and “unambiguously” has the authority to regulate viruses, regardless of whether the virus is unique to the workplace. The panel further held that OSHA has the authority to issue an emergency temporary standard like this because COVID-19 transmission constitutes a “grave danger” to the workplace, particularly to unvaccinated workers. The Cincinnati panel dissolved the injunction issued by the Fifth Circuit, thus permitting OSHA to move ahead with implementation of its new rule.

Appeal to the Unites States Supreme Court
As expected, business groups opposed to the new mandate immediately appealed the Cincinnati ruling to the U.S. Supreme Court (“SCOTUS”) and the fate of the rule now rests with the more conservative Court. SCOTUS can decline the request, which would effectively green light the rule everywhere in the United States, or it could elect to take up the case.

Notably, despite its conservative leanings, SCOTUS earlier this year upheld several state and local vaccine mandates, including New York’s vaccine mandate for health care workers just last week. However, OSHA’s rule presents different issues and could lead to a different result if SCOTUS grants review, as expected.

Impact on Employers
The Department of Labor is gearing up to enforce the new rule. Employers are faced with two different compliance deadlines: January 10th and February 9th. As these deadlines are fast approaching, employers should begin compliance efforts immediately.

The January 10th Deadline

By January 10th, employers must comply with all the ETS requirements other than COVID-19 testing for unvaccinated employees. These requirements include:

  • Determining the vaccination status of all covered employees by receiving proof of vaccination;
  • Requiring all covered employees who are not “fully vaccinated” (i.e., 14 days have not passed since their final vaccination dose) to wear face coverings when indoors (with certain exceptions);
  • Provide up to four (4) hours of paid leave for employees who wish to get vaccinated;
  • Maintain a roster of each employee’s vaccination status and keep a record of proof of vaccination;
  • Report certain work-related COVID-19 cases to OSHA;
  • Exclude employees with COVID-19 from the workplace for specific periods of time;
  • Develop and implement a written policy on COVID-19 vaccination that addresses all the applicable requirements under the new rule; and
  • Provide certain information to their employees, including the requirements of the new rule and the employer’s implementing policies and procedures;

The February 9th Deadline
Beginning February 9th, covered employees who are not fully vaccinated and report to a workplace at least once every seven (7) days where other people are present must do all of the following:

  • Be tested for COVID-19 once every seven (7) days; and
  • Provide documentation of their most recent COVID-19 test result to their employer within seven (7) days of their previous test result.

Employees who do not report to a workplace where other people are present must be tested seven (7) days prior to returning to the workplace and provide documentation of that negative test result to their employer upon return.

Importantly, states like California with an OSHA-approved “State Plan” must promulgate their own Emergency Temporary Standards that are at least as effective as OSHA’s. Large employers in these states, including California employers, will need to comply with the regulations of their state, not those in the ETS promulgated by federal OSHA. While these states were supposed to have their plans in place by December 5th, California and most other affected states put their plans on pause while the litigation sorted out the enforceability of the rule.

In fact, Cal/OSHA issued a new, revised Emergency Standard the day before the Sixth Circuit’s ruling. The Cal/OSHA rule is scheduled to go into effect on January 14th. However, Cal/OSHA has yet to release a statement on its plans for enforcement following the Sixth Circuit decision. We recommend that employers in these states proceed as though they will be covered by the Federal OSHA rule and be on the lookout for any additional requirements promulgated by their specific “State Plan”.

We will continue to monitor major COVID-19 related developments that impact the workplace. If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at 818-508-3700 or visit us online at

Richard S. Rosenberg
Katherine A. Hren
Charles W. Foster
Ballard Rosenberg Golper & Savitt, LLP 
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