Update: On Jan. 26, 2022, the Occupational Safety and Health Administration (OSHA) formally withdrew its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS).
On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to mandate that employees receive a COVID-19 vaccine (or be subject to a weekly COVID-19 test). Court challenges were filed and a federal circuit court put an injunction in place which prevented OSHA from enforcing the ETS. Appeals of the injunction that stayed enforcement followed and the case was assigned to a three judge panel to decide the appeals.
Late in the day on Friday, Dec. 17, 2021, the three-judge panel of the Sixth Circuit Court of Appeals dissolved the stay that prevented the ETS from going into effect, reviving the new requirements. In a thinly veiled rebuke of the Fifth Circuit’s reasoning on a key issue, the Sixth Circuit said that the earlier decision was “unadorned by precedent” and was simply “wrong.”
Over the weekend, OSHA provided clarification to employers regarding timelines for compliance with the ETS. By Jan. 10, 2022, employers must comply with all aspects of the ETS except the testing requirements. This means that employers must complete their vaccine survey, have a policy in place, require masking, etc.
Employers have until Feb. 9, 2022, to implement the testing provisions. OSHA confirmed on its website that it will not issue citations for non-compliance prior to those dates so long as employers are “exercising reasonable, good faith efforts to come into compliance with the standard.”
Several petitioners immediately filed an emergency application with the U.S. Supreme Court (SCOTUS) to stay the Sixth Circuit’s order dissolving the stay. The petitioners are asking SCOTUS to reinstate the stay on the ETS until it can hear the case. SCOTUS could choose to stop enforcement, allow the Sixth Circuit’s ruling to stand until it can decide the case or decline to decide the case at all. The timing of any response from SCOTUS is currently unknown.
What should employers do now?
Despite the judicial ping pong, given the compliance deadlines, covered employers should refamiliarize themselves with the ETS’s requirements. Employers that have not done so already should prepare a draft policy in case OSHA can enforce the ETS. Additionally, employers should prepare to conduct a survey before the Jan. 10, 2022, deadline and build in sufficient time for employees to complete the survey.
To help answer additional questions about which employers are covered, the ETS’s requirements and other details, review these articles which have been updated to reflect this weekend’s changes:
For more information on this topic, or to learn how Godfrey & Kahn can help, contact a member of our Labor, Employment & Immigration Law Practice Group.