On Friday, December 17, the Sixth Circuit Court of Appeals dissolved the Fifth Circuit’s stay of the federal Occupational Safety and Health Administration (OSHA) COVID-19 Emergency Temporary Standard (ETS), and reinstated the ETS’ “vaccine or test” requirements for private employers with 100 or more employees. Just hours after that decision, the first of several emergency appeal applications to the United States Supreme Court were filed.
Despite those legal challenges and impending Supreme Court action, OSHA announced that it would resume implementation and enforcement of the ETS. OSHA has granted employers a limited grace period to achieve compliance with the ETS’ requirements and set new compliance dates. The ETS’ original compliance dates, as discussed in greater in our prior alert, were December 6, 2021 and January 4, 2022. Those dates have been extended, and the new compliance dates are January 10, 2022 and February 9, 2022. Granted, however, that the extension to February 9, 2022, for the enforcement of the ETS’ testing requirement is only applicable to employers who are actively working towards compliance with the ETS.
Covered employers must implement the required policies, identify and record the vaccination status of all employees, and be prepared to comply with information requests from employees and OSHA by January 10. Employees must have received their primary vaccination series (i.e. a single dose of the Johnson & Johnson vaccine or the second dose of the Pfizer or Moderna vaccines) by February 9, 2022. Any employee who has not completed their primary vaccination series by February 9, 2022, will be required to undergo weekly testing in accordance with the ETS. An employer who is not working towards compliance, will be subject to citation for violation of the ETS’ testing requirements prior to the extended deadline of February 9, 2022.
Although the legal battle will continue and the ultimate fate of the ETS is unknown, it is clear that OSHA will enforce the ETS as soon as possible. Employers should respond accordingly and either resume or restart their compliance efforts to ensure they meet the ETS’ new deadlines.
For more information on compliance with the ETS, see our prior E-Alert, HLS Employment Law Update – OSHA ETS.