December 20, 2021
On Friday, December 17, 2021, the U.S. Court of Appeals for the 6th Circuit terminated the “stay” on the OSHA’s Emergency Temporary Standard (ETS). The case will continue to be litigated in the Appellate Court and potentially go to the U.S. Supreme Court, but for now employers must move forward to comply with the ETS. OSHA has issued a statement in response to the ruling and provided new dates by which employers must come into compliance with the ETS (summarized below).
How We Got Here
On November 4, 2021, following a Presidential announcement several weeks prior, OSHA issued the ETS with an aggressive implementation deadline and sweeping requirements for employers with 100 or more employees. The ETS requires employers to enact a COVID-19 vaccination mandate, or at minimum, provide for a vaccination or weekly testing protocol. The ETS was immediately subject to several legal challenges and a “stay” from the U.S. Court of Appeals for the 5th Circuit. Ultimately, those proceedings were consolidated and transferred to the 6th Circuit Court of Appeals where the parties have been working through the case’s next steps.
What Has Changed and What You Need to Do Now
On Friday, a three-judge Appellate Court panel voted 2-1 to lift the stay and allow the ETS to proceed. Because of this change, the ETS is presumed to be effective unless another court issues a stay or there is a contrary final Appeals Court or U.S. Supreme Court decision. This means that as of now covered employers must follow and comply with the requirements of the ETS. Note that Federal government contractors and health care employers that would be covered by other rules, executive orders, or other requirements may still be subject to the OSHA ETS if the other, generally more stringent, requirements are on-hold for their own legal proceedings or not applicable to the employer's entire workforce.
Timing and Requirements
In its response to the lifting of the stay, OSHA provided that it will not issue citations for noncompliance for a limited period of time beyond the original deadlines in order to allow employers to comply. While OSHA did not technically change the original deadlines, this relief essentially shifts the ETS’s effective dates, but only so long as the employer is “exercising reasonable, good faith efforts to come into compliance with the standard.”
- Original December 5, 2021 due date for policy adoption and other requirements will not be subject to citations until January 10, 2022 (conditioned on the employer’s reasonable, good faith compliance efforts)
- Original January 4, 2022 start date for mandated testing of unvaccinated employees will not be subject to citations until February 9, 2022 (conditioned on the employer’s reasonable, good faith compliance efforts)
As a refresher on the ETS requirements, including which provisions were subject to the original deadlines, please see Business Group’s What Your CEO is Reading: Employers are Wrestling with OSHA’s new Emergency Temporary Standard (ETS).
In many cases, employers have continued preparations in-line with ETS requirements even during the stay, so many will be a step ahead on implementation. Nevertheless, the citation delays are welcome relief for employers to continue to work towards compliance without the fear of significant fines from OSHA. We suggest you contact your legal counsel to discuss these developments and any steps you may need to take in the coming weeks.
We will continue to monitor the OSHA ETS and related matters and provide additional updates in the future. For any questions, please feel free to contact Garrett Hohimer, Director, Policy & Advocacy at [email protected] (note that with the holidays imminent response times may be delayed).
We provide this material for informational purposes only; it is not a substitute for legal advice.
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