On Friday, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit lifted the stay on the OSHA ETS, which had been put in place by the Fifth Circuit. The OSHA ETS requires employers with 100 or more employees to either (1) develop and enforce a mandatory COVID-19 vaccination policy, or (2) implement a policy allowing employees to choose to be fully vaccinated or to be subject to testing requirements and certain mask-wearing rules. Although this decision is currently being appealed to the U.S. Supreme Court, this does not delay implementation of the ETS which is currently in effect. Covered employers have until January 10, 2022 to comply with these rules, and will have until February 9, 2022 to begin their testing programs for employees who are not fully vaccinated.
A three-judge panel of the Sixth Circuit dissolved the Fifth Circuit’s stay, reasoning that OSHA has the necessary authority to implement the vaccination and testing requirements imposed by the ETS. Shortly after this decision was made, various trade groups filed legal pleadings with the U.S. Supreme Court requesting a stay of the Sixth Circuit’s decision pending further review. The current deadline for responding to the filings is December 30, 2021.
Based on the Sixth Circuit’s ruling, OSHA announced that it is pushing back the previous deadlines for covered employers to comply with the ETS. Covered employers will now generally have until January 10, 2022, to comply with the ETS, and will have until February 9, 2022 to begin their testing programs for employees who are not fully vaccinated.
The OSHA ETS is now enforceable (although further delays are possible). Employers should prepare for the possibility that the ETS will be upheld and enforced by OSHA as described above. In this regard, employers should continue to develop its COVID-19 policies and testing protocols. Employers should also continue to monitor the status of this ongoing legal issue.
Please contact one of the employment law attorneys at Dvorak Law Group if you have questions regarding this information or if you have specific questions and recommendations regarding your business.
**The mandatory vaccination rules for certain covered federal contractors and subcontractors remain stayed and are not enforceable at this time.