In November, the Fifth Circuit Court of Appeals entered an order staying enforcement of OSHA’s Emergency Temporary Standard (“ETS”). The ETS had required employers with 100 or more employees to create a COVID policy that required vaccination or weekly testing for all of their employees. As a result of OSHA’s previous statement that it would not enforce the ETS given the stay, employers were off the hook on the COVID vaccine policy obligations.
On Friday night, large employers got startling news. The Sixth Circuit, which was selected to rule on the nationwide petitions challenging the rule, lifted the stay in a 2-1 decision. OSHA has now updated their website over the weekend to show they are delaying enforcement to provide employers with time to implement the necessary policies, stating in part:
OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, 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. OSHA will work closely with the regulated community to provide compliance assistance.
Creating further uncertainty, this ruling has already been appealed to the U.S. Supreme Court. Given OSHA’s new pronouncement, employers must work on implementation of the policy and other requirements of the ETS to ensure compliance with the January 10 and February 10 deadlines. Employers should also be careful to determine if they are separately covered by other mandates by the Centers for Medicare and Medicaid Services (CMS) for healthcare providers or the Executive Order for federal contractors.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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