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.

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