On December 17, 2021, the Sixth Circuit Court of Appeals dissolved another court’s stay of the Occupational Safety and Health Administration’s (OSHA’s) Vaccination and Testing Emergency Temporary Standard (ETS). As we have previously explained, this new standard requires covered employers (with 100+ employees) to develop, implement, and enforce a mandatory vaccination policy, with an exception for covered employers who instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. (See WTK’s alert on the ETS here.) While the Fifth Circuit Court of Appeals had entered a court order barring enforcement of the ETS, the Sixth Circuit dissolved the stay last week, immediately reinstating the ETS. While the standard’s challengers immediately sought review and a stay from the U.S. Supreme Court, the Court is not expected to act before early January.  

OSHA has indicated that it will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. In effect, the original deadline of December 5, 2021, which included steps such as implementing a vaccine and testing policy (as detailed in WTK’s alert on the ETS) has become January 10, 2022; and the original deadline of January 4, 2022, by which all employees must be fully vaccinated or submit to weekly testing has become February 9, 2022. For the latest on OSHA’s enforcement of the ETS, check their website: COVID-19 Vaccination and Testing ETS | Occupational Safety and Health Administration (osha.gov). 

We will of course keep you informed of any decision by the Supreme Court or additional guidance from OSHA. In the meantime, the ETS remains in effect and the January 10, 2022 deadline is fast-approaching. Because the Supreme Court is not expected to act before January, covered employers should take steps now to comply with the ETS. Please feel free to contact any member of the WTK employment team to discuss how your business should respond to these latest developments.

For further information contact:

Katherine M. McCray (kmccray@wilsonturnerkosmo.com)

Emily J. Fox (efox@wilsonturnerkosmo.com)

Michael S. Kalt (mkalt@wilsonturnerkosmo.com)

Wilson Turner Kosmo’s Special Alerts are intended to update our valued clients on significant developments in the law as they occur. This should not be considered legal advice.