Federal Court Reinstates OSHA Vaccination and Testing ETS
On December 17, the 6th U.S. Court of Appeals vacated the 5th Circuit Court’s emergency motion to stay the Occupational Safety and Health Administration (OSHA)’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), paving the way for OSHA to continue implementing and enforcing the vaccination and testing requirements for covered employers with 100 or more employees.
The ETS requires covered employers and employees to be fully vaccinated or in compliance with testing requirements by January 4, 2022. The stay, which was granted in November, temporarily halted OSHA from implementing and enforcing the vaccination and testing requirements. While the stay was in place, it was unclear whether or not OSHA would be able to fully implement the ETS by January 4 or any time after.
With the recent decision from the 6th Circuit Court, OSHA now plans to implement the ETS as quickly as possible. To account for the timing uncertainty created by the stay, however, OSHA also has announced that it will not issue non-compliance citations for any of the requirements of the ETS before January 10, 2022, and it will not issue non-compliance citations specifically for the ETS’s testing requirements until February 9, 2022, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” OSHA has also vowed to provide compliance assistance to help employers navigate these new requirements and timelines.
Shortly after the 6th Circuit’s order, a number of groups challenging the ETS filed emergency applications with the Supreme Court seeking to reinstate the stay. Meanwhile, the federal contractor vaccine mandate and the Centers for Medicare and Medicaid Services’ (CMS) healthcare worker vaccine mandate remain stayed as litigation continues in several federal courts.
CUPA-HR will keep members apprised of any future legal challenges and decisions made on the OSHA ETS, federal contractor vaccine mandate, and healthcare worker vaccine mandate.