As we last reported in our December L&E Newsletter, OSHA’s Emergency Temporary Standard (ETS) requiring employers with at least 100 employees to mandate that all employees be fully vaccinated against COVID-19 or submit to weekly testing was stayed by the U.S. Court of Appeals for the Fifth Circuit.
Thereafter, the U.S. Circuit Court of Appeals for the Sixth Circuit was randomly selected to hear the legal challenges to the OSHA ETS.
On December 17, the U.S. Court of Appeals for the Sixth Circuit dissolved the stay. OSHA thereafter updated its website, stating it can now once again implement the ETS and will exercise “enforcement discretion with respect to the compliance dates” of the ETS to provide covered employers with sufficient time to come into compliance. OSHA explained it will not issue citations for noncompliance with any ETS requirements before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. As a reminder, the ETS covers employers with 100 or more employees company-wide. It includes temporary workers, season workers, and minors.
Covered employers are required to establish and implement a written mandatory vaccination policy unless the employer adopts an alternative policy requiring COVID-19 testing and face coverings for unvaccinated employees. See our article for more details of what the ETS requires.
After numerous emergency stay petitions were filed with the U.S. Supreme Court to reinstate the stay, the high Court will hear oral arguments on January 7 to review the legal challenges. In the meantime, covered employers should work toward compliance by the upcoming January 10 and February 9 dates.
Please contact us if you have any questions.