Labor & Employment Alert: Sixth Circuit Court of Appeals Lifts Stay on OSHA ETS for Vaccination and Testing for Employers with 100 or More Employees

In a 2-1 decision on Friday, December 17th, the Sixth Circuit Court of Appeals lifted the stay on the Occupational Safety and Health Administration’s (OSHA) enforcement of the emergency temporary standard (ETS) requiring employers with 100 or more employees to implement a mandatory vaccination program for employees or, alternatively, to require employees to submit to weekly COVID-19 testing and wear a face covering at work. Originally, unvaccinated workers were to begin wearing masks by December 5, 2021 and begin providing weekly negative test results beginning January 4, 2022.  Later in the evening on December 17th, OSHA posted the following notice on its website concerning enforcement of the ETS:

“To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, 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. OSHA will work closely with the    regulated community to provide compliance assistance.”

The state attorney general’s that brought suit filed an immediate appeal with the U.S. Supreme Court. And although the Court is not required to hear the case, it is likely that it will.

What should employers do prior to January 10?

For now, employers should assume that the ETS will go into effect, and they should continue taking the necessary steps to comply with the standard, including:

• Develop a written mandatory vaccination policy or a written policy for weekly testing and masking for those employees who are unvaccinated. 

• Determine the vaccination status of all employees, obtain acceptable proof of vaccination status for those employees that are vaccinated, and maintain records of each employee’s vaccination status.

A summary of the ETS requirements can be found here. 

Up to this point, the ETS has had more twists and turns than a rollercoaster and we will continue to keep you updated as to any new developments.