On November 9, 2021, we discussed developments with the new federal OSHA Emergency Temporary Standard for employers with 100+ employees. In that post, we explained how the ETS required such employers to ensure their workers are fully vaccinated against COVID-19 or submit to weekly COVID-19 testing, and noted that the United States Court of Appeals for the Fifth Circuit had granted a temporary nationwide stay of the ETS, meaning that the ETS could not be enforced.
Since November 9, new developments have come thick and fast:
- All challenges to the ETS in federal courts were consolidated and assigned to the Sixth Circuit Court of Appeals.
- On December 17, 2021, the Sixth Circuit lifted the Fifth Circuit’s stay, meaning that the ETS is now once again in effect. On December 18, 2021, OSHA announced that compliance with the ETS must begin on January 10, 2022. OSHA “will not issue citations for non-compliance with any requirements of the ETS 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.”
- On December 22, 2021, the U.S. Supreme Court granted review of the Sixth Circuit’s decision, setting oral argument for January 7, 2022.
Given the legal uncertainty, employers should be prepared to comply with the ETS by January 10, 2022. The ETS requirements are set out in our post of November 9, 2021. We will keep you posted as we learn more.
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