December 20, 2021 Article

OSHA's ETS Moves One Step Closer to Reality in 2022

On Friday, December 17, 2021, the Sixth Circuit Court of Appeals lifted another appellate court’s emergency stay order, reinstating the OSHA Vaccine and Testing Emergency Temporary Standard (ETS) for employers with 100 or more employees.

This decision by the 3-judge panel dissolves a nationwide stay issued by the Fifth Circuit Court of Appeals in November that barred the enforcement of the ETS. The Sixth Circuit held that OSHA had demonstrated the “pervasive danger” that COVID-19 poses to workers and that challenges to the ETS would likely not prevail on the merits. Immediately following the ruling, requests for an emergency stay of the Sixth Circuit’s order were filed with the U.S. Supreme Court, who has the power to fast-track its analysis of the ETS without requiring parties to adhere to its customary briefing and argument procedure. Thus, the fate of the ETS is still unclear.

The ETS requires employers to obtain acceptable proof of and track the vaccination status of each employee, ensure each employee who is not fully vaccinated complies with an acceptable weekly testing protocol, and ensure each employee who is not fully vaccinated wears a face covering when indoors or occupying a vehicle with another person for work purposes. There are exceptions for those who work exclusively outdoors or at home. Employers are also required to consider accommodations for employees who request exemptions for valid medical and religious reasons. Our earlier summary of the ETS requirements is available here.

At this point, lifting the stay only means that OSHA can begin preparing for ETS enforcement. To account for the uncertainty created by the stay, 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 non-compliance with testing requirements before February 9, 2022 “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” OSHA has also indicated they will “work closely with the regulated community to provide compliance assistance.” In taking this action, the U.S. Department of Labor is presumably leaving time for the U.S. Supreme Court to weigh in on the ETS once and for all.

Although the legal battles are not over, employers who have not already begun making plans for implementation should move swiftly to finalize all the elements of their plan – including the collection of vaccination data, the mechanics of their regular alternative testing protocol, the development of robust reporting and recordkeeping procedures, and –of course—all necessary training related to these elements.

We will continue to monitor and report on developments regarding the ETS.

Firm Highlights

Publication

Considerations When Terminating a Foreign Worker (H-1B, H-1B1, E-1/E-2, E-3, TN, L-1, O-1)

Terminating an employee is always a difficult decision. Terminating a foreign worker has additional challenges and consequences that must be considered, and employers must ensure they comply with state and federal law. An employer...

Publication

What to Expect When You're Expecting: Two New Federal Laws Expand Workplace Rights and Protections for Pregnant and Nursing Employees

On December 29, 2022, President Biden signed two (2) bills into law that expand workplace protections for pregnant and nursing employees—the  Pregnant Workers Fairness Act  (the "PWFA") and the  Providing Urgent Maternal Protections for...

News

Attorney Michael Messerschmidt Selected by Peers as “Lawyer of the Year” in Best Lawyers in America 2023

Preti Flaherty attorney Michael G. Messerschmidt has been recognized in Best Lawyers in America 2023 as the “Lawyer of the Year” in the field of Labor Law ­– Management. Inclusion in Best Lawyers in...

Publication

New EEOC Poster Requirement and Guidance on Notice-Posting in Hybrid Workplaces

The U.S. Equal Opportunity Commission (“EEOC”) recently updated the “EEO is the Law” poster and replaced it with a new one: “ Know Your Rights: Workplace Discrimination is Illegal .” The new poster was...

Publication

Another Reminder to Update Policies and Procedures to Reflect Latest COVID-19 Guidance

We  last updated you in early August  regarding the latest COVID-19 quarantine and isolation guidance from the Centers for Disease Control and Prevention (“CDC”).  Cold and flu season is now upon us, and experts are...

News

U.S. News – Best Lawyers Ranks Preti Flaherty Among 2023 Best Law Firms

Preti Flaherty has been named among the 2023 Best Law Firms by the U.S. News – Best Lawyers rankings. To be eligible for ranking, a law firm must have at least one attorney named...

News

Preti Flaherty Continues Year of Remarkable Growth with Addition of Five New Attorneys

Preti Flaherty is pleased to announce the arrival of five new Associates to the firm: Scott A. DeLong, Christopher S. Knight, Kijana Plenderleith, Harper A. Weissburg, and Joshua D. Williams. In our Portland, Maine, office...

Publication

Reminder to Continue to Update Policies and Practices to Reflect Latest COVID-19 Guidance

You might be sick of thinking about COVID-19 but people are still getting sick and employers must take appropriate action to keep the workplace safe. There has been a steady increase this summer in...

News

46 Preti Flaherty Attorneys Selected by Peers for Inclusion in Best Lawyers in America 2023, Including 6 “Lawyers of the Year”

Forty-six Preti Flaherty attorneys have been named to Best Lawyers in America 2023, including three “Ones to Watch” and six “Lawyer of the Year” recipients. Inclusion in Best Lawyers in America is considered a...

News

Fifteen Preti Flaherty Attorneys Selected for Inclusion in 2022 Super Lawyers

Fifteen Preti Flaherty attorneys have been selected for recognition by Super Lawyers , including seven Rising Stars. Super Lawyers rates outstanding lawyers throughout the United States in more than 70 practice areas. Only five...