OSHA ETS in effect; Fifth Circuit stay dissolved

On December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay that blocked OSHA from enforcing its vaccine or testing mandate. The OSHA ETS is once again in effect unless the United States Supreme Court agrees to swiftly take up the issue. On December 18, 2021, OSHA acknowledged that the stay created uncertainty for employers regarding compliance obligations and set new deadlines for noncompliance enforcement. OSHA will not issue citations for “noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” Employers should document the reasonable, good faith efforts made to come into compliance by the stated deadlines, along with any obstacles or challenges that arise.

As a reminder, employers with 100 or more employees nationwide must develop and communicate a policy that requires employees to either be fully vaccinated or submit to weekly testing. Employers may choose to require vaccination with no weekly testing option. Additionally, employers must collect proof of employee vaccination status, implement a masking requirement for unvaccinated employees, and distribute a written policy and other required written materials, including the CDC document “Key Things to Know About COVID-19 Vaccines,” by the enforcement deadline of January 10, 2022.

If you need assistance with compliance, including policy drafting or review, collecting information from employees regarding proof of vaccination, and managing requests for medical and religious accommodations, contact your counsel. Additionally, employers who are also subject to the Federal Contractor and/or CMS Mandate should speak with their counsel regarding policy implementation and strategy.