On December 17, 2021, the 6th Circuit Court of Appeals dissolved the stay imposed by its sister circuit on OSHA’s Emergency Temporary Standard requiring employers with 100 or more employees to mandate employees be vaccinated or submit to weekly testing (OSHA ETS), meaning the OSHA ETS is now back in effect.
Following the 6th Circuit’s decision, OSHA announced new deadlines. Covered employers have until January 10, 2022 to come into compliance with the majority of the ETS’s requirements before risking an OSHA citation and until February 9, 2022 to come into compliance with the standard’s testing requirements “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
However, the litigation is not over yet. Immediately after the 6th Circuit’s Decision, an Emergency Application for Stay of Agency Action was filed with the United States Supreme Court.
Despite the potential for the law to be stayed once again, given the quick deadlines set by OSHA, employers should begin making efforts to comply with the ETS and monitor the continued litigation for any developments. Our previous post, “OSHA Releases Highly Anticipated COVID Vaccine Mandate for Employers with 100+ Employees” as well as our “OSHA’s New Vaccine Mandate and Testing Policy” webinar contain information employers can use for this purpose as well as to determine which employers and employees are covered under the OSHA ETS.
Additionally, as the federal contractor vaccine mandate is still stayed nationwide, federal contractors with 100 or more employees should consult with counsel regarding compliance with the ETS and potential future compliance with the government contractor vaccine mandate.
If you have any questions on the OSHA ETS’s application to your organization or how to comply with the OSHA ETS’s requirements, Lerch Early’s employment attorneys are ready to help.