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

FY2023 H-1B Season – Key Facts for Employers

United States Citizenship and Immigration Services announced that the H-1B initial registration period for the FY 2023 cap is scheduled to open at noon ET on March 1, 2022 and will remain open until noon ET...

News

Sixteen Preti Flaherty Attorneys Selected as Chambers USA Leaders in Their Field

Sixteen Preti Flaherty attorneys and six practice groups have been selected for inclusion in the 2022 Chambers USA Guide to America's Leading Lawyers for Business , the highly regarded directory of leading attorneys and...

Publication

Are We Done Yet? Managing COVID-19 in Year Three

Every business owner understands that vigilance is a critical component for managing legal and financial risks. As we all enter the third year living with COVID-19, we have collected a few of the most...

Publication

Employers May See Increased Accommodation Requests in 2022

The Covid-19 pandemic has created a multitude of challenges for employers. As more employees return to the office in 2022—whether full-time or on a hybrid schedule—employers will face difficult compliance questions and, most likely...

Publication

Not So Fast: OSHA’s ETS in Limbo While Challenges Play Out

Over the weekend, the Fifth Circuit Court of Appeals temporarily blocked the emergency mandatory vaccine and testing regulations published in place by the Occupational Safety and Health Administration (OSHA).  As of November 9, 2021...

Publication

What Are My Options If My H-1B Registration Was Not Selected?

The H-1B nonimmigrant visa category allows employers to sponsor foreign nationals performing work in a “specialty occupation.” This typically requires an offer of employment in a job requiring at least a U.S. bachelor’s degree...

Publication

Changes Affecting Employment Authorization for L-2, E, and H-4 Dependent Spouses

On November 12, 2021, USCIS announced that L-2 and E dependent spouses are no longer required to apply for an EAD to work in the United States. Instead, L-2 and E dependent spouses are...

Publication

How Does the Collapse of Roe v. Wade Impact Employer Health Plans?

On June 24, 2022, the U.S. Supreme Court overturned its prior decisions in  Roe v. Wade  and  Planned Parenthood v. Casey , which held that the U.S. Constitution prohibits states from banning abortion or...

Publication

35,000 Additional H-2B Visas Now Available for the Second Half of Fiscal Year

On May 18, 2022, the Department of Homeland Security (DHS) and the Department of Labor (DOL) issued a temporary rule authorizing the issuance of additional 35,000 H-2B visas for the second half of Fiscal...

Publication

What Do the Supreme Court's Vaccination Rulings Mean for Your Business?

Reflecting the deep rift in public opinion concerning the government’s role in dictating how businesses, health care entities and public sector employers ought to act to stem the spread of COVID-19, a divided U.S. Supreme...