The Occupational Safety and Health Administration (OSHA) on November 4, 2021, issued its Emergency Temporary Standard (ETS), requiring all employers with 100 or more employees to choose between (1) implementing a mandatory COVID-19 vaccine policy, and (2) requiring face coverings and weekly testing for the nonvaccinated. That order was to go into effect on December 6, 2021, requiring the development of a policy and gathering proofs of vaccinations by that date, with the testing part taking effect on January 4, 2022. The U.S. Court of Appeals for the Fifth Circuit on November 12 enjoined the ETS from taking effect; and following that order, OSHA stood down on enforcing the ETS. Much litigation followed, with a national consolidation of related cases shifted to the Sixth Circuit Court of Appeals; and that court on December 17 dissolved the order of the Fifth Circuit, reinstating the ETS.
In response to the Sixth Circuit’s order, OSHA issued a statement:
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.
So the old deadlines of December 6 and January 4 have been changed to January 10 and February 9. Of course, the entire Sixth Circuit court can revisit the December 17 order, or an expedited appeal can be taken to the Supreme Court of the United States. The current status quo is that the ETS is in effect; and indeed, almost immediately after the Sixth Circuit issued its order, opponents of the ETS began filing emergency applications with the Supreme Court requesting that it immediately stay the Sixth Circuit’s order.
For the full alert, visit the Faegre Drinker website.
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