The Return of the OSHA ETS: What Now and What’s Next?

Frederick G. Sandstrom

On December 17, the U.S. Court of Appeals for the Sixth Circuit revived the federal Occupational Safety and Health Administration’s much-litigated “vaccinate or test” Emergency Temporary Standard (“ETS”). The Sixth Circuit’s divided decision lifted the nationwide stay on enforcement of the ETS that had previously been ordered by the U.S. Court of Appeals for the Fifth Circuit. The litigation will now move to the U.S. Supreme Court, which has already received eight separate petitions seeking to stay the Sixth Circuit’s decision. The Supreme Court has ordered the federal government to respond to the petitions by December 30.

OSHA has moved quickly to reinstate the ETS. On December 18, OSHA released new guidance on the timing for compliance with, and enforcement of, the ETS’s requirements. Broadly speaking, the guidance states that: (1) OSHA will not issue citations for noncompliance with the ETS prior to January 10, 2022; and (2) OSHA also will not issue citations for noncompliance with the ETS’s testing requirements prior to February 9, 2022, provided that an employer is “exercising reasonable, good faith efforts to come into compliance.”

OSHA has promised more detailed guidance. And there will likely be more twists and turns as the appeals from the Sixth Circuit’s decision proceed to the Supreme Court. For now, however, covered employers that paused their efforts to comply with the ETS in light of the stay, should take steps to resume their efforts to continue down the path to compliance. The December 18 guidance suggests strongly that OSHA expects covered employers to do the following by the initial January 10 compliance deadline: (1) adopt a written vaccination policy; (2) confirm each employee’s vaccination status, including proof of vaccination for vaccinated employees; (3) provide paid time off for unvaccinated or partially vaccinated employees to be vaccinated; and (4) require face coverings and other protective measures for unvaccinated employees working on-site. The ETS also contains informational requirements, including an obligation for covered employers to provide employees with a copy of the CDC’s publication on “Key Things to Know About COVID-19 Vaccines” (a copy of which can be obtained here).

We will continue to update you on further developments regarding the ETS as the appeals process continues before the Supreme Court.

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