WASHINGTON – Employers will be given more time to comply with a federal requirement that workers get vaccinated for COVID-19 or be regularly tested, the U.S. Department of Labor announced Saturday after a federal appeals court allowed the rule to go forward.
Workers who are not fully vaccinated won’t have to be regularly tested for the coronavirus until Feb. 9, more than a month after the original deadline of Jan. 4.
The department said it is exercising enforcement discretion to “account for any uncertainty” caused by the legal challenges that had blocked the rule.
Businesses with at least 100 employers were to have determined the vaccination status of workers – and require unvaccinated workers to wear masks – by Dec. 6.
The Labor Department said it won’t issue any penalties before Jan. 10 and will take no action on the testing rules until Feb. 9, as long as an employer “is exercising reasonable, good faith efforts to come into compliance.”
The Occupational Safety and Health Administration requirement also applies to state and local government workers in 26 states, including teachers and school staff.
David Michaels, an epidemiologist at George Washington University School of Public Health who headed OSHA during the Obama administration, said employers should not wait to act.
As the omicron variant is surging across the country, Michaels said, employers should “ramp up workplace protections as quickly as possible.”
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The agency’s announcement arrived hours after the Ohio-based U.S. Court of Appeals for the 6th Circuit reinstated President Joe Biden’s requirement late Friday. A 2-1 majority of the court ruled that OSHA is probably within its legal authority to implement the “emergency temporary standard” requiring vaccines or testing.
That decision essentially overturned a ruling in November from the Louisiana-based U.S. Court of Appeals for the 5th Circuit, which temporarily blocked the rule and described it as “staggeringly overbroad.”
The Labor Department said it is gratified by the decision to uphold what it called a “vital workplace health standard.”
“Especially as the US faces the highly transmissible Omicron variant, it’s critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment,” White House assistant press secretary Kevin Munoz said on Twitter.
The on-again-off-again handling of the employer mandate by federal courts means the issue is almost certain to wind up before the Supreme Court on an expedited basis. Several groups that filed lawsuits over the employer mandate announced late Friday they had sent appeals to the high court.
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The justices could take up that appeal relatively quickly. 
“The profoundly negative effect of this upon those employers and the 80 million American workers who are impacted is just one reason the Supreme Court immediately should halt enforcement of the mandate,” said Ryan Bangert, senior counsel at the Alliance Defending Freedom.
The appeals court wrote Friday that the OSHA rule is “an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States.”
The majority was made up of one judge nominated by President Barack Obama and another nominated by President George W. Bush. A third judge, nominated by President Donald Trump, dissented from the court’s ruling.
Biden administration attorneys asked the Supreme Court justices this week to reinstate a mandate on health care workers. Federal courts in Missouri and Louisiana blocked that requirement, which applies to people who work in health facilities that receive federal funding, such as through Medicare.
Biden said he reluctantly agreed to vaccination requirements after educational efforts and various incentives failed to persuade enough Americans to protect themselves and others against COVID-19.
The federal regulations preempt any state or local prohibition against vaccination requirements or mask mandates.
Labor Department officials said they expect the “vast majority” of workplaces to comply, as they do with other rules. As with other requirements, OSHA will rely on worker complaints and spot checks for enforcement.
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