On December 17, 2021, the U.S. Court of Appeals for the 6th Circuit dissolved the stay of the OSHA Emergency Temporary Standards (ETS) for COVID-19 Vaccine and Testing. As a result, OSHA announced that it would move forward with the ETS implementation. OSHA indicated that it would not issue citations for noncompliance if covered employers complied with the ETS (except the COVID-19 testing requirement) by January 10, 2022 and with the weekly COVID-19 testing requirement for unvaccinated employees by February 9, 2022.

Given this new development, employers with 100 or more employees should begin making efforts to comply with the ETS provisions (e.g., written mandatory vaccination or hybrid vaccination testing policy, paid time off, etc.) and COVID-testing requirement by the new deadlines.

Background

The OSHA ETS was initially released on November 5, 2021. Among other items, the ETS requires private employers who have 100 or more employees at any time the ETS is in effect to develop, implement, and enforce a written policy that (1) requires employees to be fully vaccinated (with certain exceptions) or (2) requires employees to undergo weekly COVID-19 testing and wear a face covering indoors. The ETS also required covered employers to document vaccination status and COVID-19 test results, provide certain paid time off, and provide notice to employees, among other requirements. We discussed the requirements of the ETS in detail in our prior blog article.

Covered employers were originally required to comply with the ETS by December 5, 2021 (and the weekly COVID-19 testing requirement by January 4, 2022). However, on November 12, 2021, the U.S. Court of Appeals for the 5th Circuit issued a stay (or “suspended”) the implementation of the ETS. Under the stay, the 5th Circuit ordered OSHA “take no steps to implement or enforce” the ETS “until further court order.”

On December 17, 2021, the U.S. Court of Appeals for the 6th Circuit dissolved the ETS stay, finding, among other things, that OSHA’s mission to ensure safe and healthy working conditions gave them the authority to promulgate standards addressing viruses and infectious diseases in the workplace.

New ETS Compliance Deadlines

In response to the dissolution of the stay, OSHA announced its intention to move forward with the ETS implementation, along with new compliance deadlines.

Employers with 100+ employees will not be subject to a citation for noncompliance with the ETS if they exercise reasonable, good faith efforts to comply with:

  • All provisions of the ETS (e.g., written vaccination/testing policy, mandatory paid time off, employee notice, etc.), except the COVID-19 testing requirement, by January 10, 2022; and
  • The COVID-19 weekly testing requirement for unvaccinated employees by February 9, 2022.

Recommended Employer Action

Employers with 100 or more employees should make efforts to comply with the ETS by the new deadlines.

Additional Resources

Emerald Law — Emerald is a Client Compliance Consultant for Sequoia, where she works with our clients to optimize and streamline benefits compliance. In her free time, Emerald enjoys stand-up comedy, live music and writing non-fiction.