On Friday, December 17, 2021, a divided panel of the U.S. Court of Appeals for the Sixth Circuit dissolved the United States Court of Appeal’s (Fifth Circuit) temporary stay and reinstated the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) Emergency Temporary Standards (“ETS”) for employers with at least 100 employees.
Recall that the ETS requires covered employers to develop, implement, and enforce a mandatory vaccination policy. As an alternative covered employers can instead enact a policy requiring employees to elect either to get vaccinated or to undergo regular COVID-19 testing and wear a face covering at work. You can find our previous legal update on the ETS requirements here.
For covered employers, OSHA also has announced revised compliance deadlines on its website (click here). Specifically, OSHA has stated that it will refrain from issuing any citations for noncompliance with the ETS requirements until January 10, 2022. Further, OSHA stated that it would not issue citations for noncompliance with the standard’s weekly testing requirements before February 9, 2022, so long as an employer exercised reasonable, good faith efforts to comply with the standard. (See FAQ 12A for the specific ETS requirements and effective dates here.)
Within an hour of the Sixth Circuit’s decision reinstating the federal vaccine mandate for large employers, 26 trade groups filed an “Emergency Application for Immediate Stay of Agency Action Pending Disposition of Petition for Review” with the United States Supreme Court to block the ETS, requesting a further stay pending the Supreme Court’s review. The Supreme Court could reinstate the Fifth Circuit’s stay, or it could deny the petition for review and refrain from intervening.
The Supreme Court has set a December 30, 2021 deadline for the parties to submit their briefings on the ETS issue. Given the short timelines in play, a final ruling may not be issued before the January 10, 2022 compliance deadline.
For now, the ETS is effective once again, and covered employers who have not already done so must comply in good faith and develop ETS compliant COVID-19 policies in advance of the January 10, 2022, and February 9, 2022 deadlines.
LightGabler will continue to provide further updates on the status of the Federal ETS as those updates become available.
For further information regarding vaccination mandates or assistance with other employment law issues, contact the attorneys at LightGabler.