On December 17, 2021, the United States Court of Appeals for the Sixth Circuit lifted the stay of the OSHA standard requiring vaccination or weekly testing of workers at private employers with 100 or more employees that the Fifth Circuit previously imposed. The emergency temporary standard (ETS) is again in effect, and employers should continue or resume preparing for compliance. To account for the uncertainty surrounding the stay, OSHA has indicated that it will not issue citations for non-compliance with most requirements of the ETS before January 10, 2022. If an employer chooses to allow weekly testing in lieu of vaccination, OSHA will not issue citations for non-compliance with the testing requirements in the ETS before February 9, 2022. Note, however, that the employer must have made “reasonable, good faith efforts” to come into compliance.
How We Got Here
The ETS, released on November 4, 2021, was immediately met with a flurry of legal challenges in federal courts around the country. The United States Court of Appeals for the Fifth Circuit halted enforcement of the ETS on November 12, 2021 pending full judicial review, as we previously reported. Because multiple petitions challenging the ETS had been filed in different circuits around the country, a lottery was used to select a circuit to hear the consolidated petitions. The Sixth Circuit was chosen at that circuit. The Sixth Circuit has now dissolved the Fifth Circuit’s stay of the ETS.
What’s Next
The Sixth Circuit’s 2-1 ruling indicates that the petitioners opposing the ETS are “unlikely to succeed” in permanently striking down the ETS. The petitioners immediately filed an emergency application with the United States Supreme Court to reinstate the stay of the ETS. So, the ETS may still be in jeopardy, and the legal landscape could again change.
Note also that the ETS is a temporary standard that will remain in place for six months assuming the ETS survives legal challenges. OSHA is considering making the standard permanent and is accepting comments on this proposal. OSHA has now extended the comment period. Written comments on any aspect of the ETS must now be submitted by January 19, 2022. Written comments on the information collection request in the ETS preamble must still be submitted by January 4, 2022.
What This Means for Employers
We previously encouraged employers to continue compliance efforts during the Fifth Circuit’s stay in the event that the stay is lifted, which has now occurred. By its terms, the ETS requires compliance by December 5, 2021, and if employers choose to allow weekly testing as an alternative to vaccination, that testing must begin by January 4, 2022. While OSHA has now indicated that it will not issue citations for non-compliance until January 10 and February 9, 2022, respectively, the employer must have been making “reasonable, good faith” efforts at compliance.
Employers should therefore continue preparing for compliance with the many requirements of the ETS, including written COVID policies, face coverings for unvaccinated individuals, rosters of employee vaccination statuses, and collecting proof of vaccination. Our prior post summarizes these requirements. For example, employers should do the following now, if they have not already.
- Find out who is vaccinated and who is not, and request proof of vaccination.
- Survey employee opinions, which may greatly inform your compliance strategy.
- Decide whether to allow weekly testing as an alternative to vaccination, and if so, consider the logistics of testing, such as who will pay for it, how results will be collected and stored, and how to ensure negative results are returned on time.
- Come up with a plan for evaluating requests for accommodations due to a medication condition, disability, or religious belief.
- Determine how to handle requests for time off to get vaccinated.
- Subscribe to legal blogs and news outlets to get the most up-to-date information.
We will continue to monitor these developments. Employers with questions about the ETS or any other employment laws should contact one of Conn Kavanaugh’s experienced employment lawyers.
Catherine DiVita can be reached at cdivita@connkavanaugh.com or (617) 348-8282.
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