OSHA to begin citations Jan. 10 after Biden's vaccine-or-test mandate reinstated for businesses

The federal government is allowing greater flexibility around its vaccinate-or-test mandate for larger businesses after a federal appeals court reinstated the rule Dec. 17, according to The New York Times.

A three-judge panel of the 6th Circuit Court of Appeals in Cincinnati reinstated the mandate after challenges to the rule were consolidated at that court on Nov. 16. The decision Dec. 17 overturned a November decision by the 5th Circuit Court of Appeals in New Orleans to temporarily block the federal government from moving forward with the rule.

"The record establishes that COVID-19 has continued to spread, mutate, kill and block the safe return of American workers to their jobs," Judge Jane B. Stranch wrote in the majority opinion, according to the Times. "To protect workers, OSHA can and must be able to respond to dangers as they evolve."

The newspaper reported that the majority opinion also rejected a challenge that the rule violated the U.S. Constitution. According to the Times, Judge Joan L. Larsen dissented, arguing that OSHA exceeded its statutory authority. 

The Labor Department's Occupational Safety and Health Administration issued the vaccine-or-test emergency temporary standard covering businesses with 100 or more employees in early November.

Businesses covered by the emergency temporary standard must put in place a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to be vaccinated or undergo regular testing and wear a face covering at work, according to OSHA. Under the rule, employers also must provide paid time off to workers to get inoculated and provide paid leave to employees to recover from any side effects of being vaccinated.

OSHA had suspended activities related to the implementation and enforcement of its rule, which is expected to affect more than 80 million workers in private sector businesses. However, considering the 6th Circuit panel decision, the agency said on its website that employers can again implement the rule.

The vaccine-or-test mandate was slated to take effect Jan. 4. To give employers more compliance time, OSHA said it will not issue citations for noncompliance with any requirements of the rule before Jan. 10 and will not issue citations for noncompliance with the rule's testing requirements prior to Feb. 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."

Several challengers said they would or already had filed emergency motions with the Supreme Court to block the OSHA mandate, according to the Times.

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