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Update on OSHA's Vaccination and Testing ETS - "Back on for Now"
December 20, 2021
On Friday evening, a split panel decision from the U.S. Court of Appeals for the Sixth Circuit lifted the stay on the OSHA ETS previously issued by the Fifth Circuit. The ETS is applicable to employers with more than 100 employees (but not healthcare employers). We expect a request for an emergency stay to be filed with the Supreme Court of the United States shortly and will continue to follow developments. 

The Department of Labor quickly reacted with an announcement late Friday night that OSHA will issue no citations for noncompliance with any ETS requirements before January 10, 2022, and no citations for noncompliance with testing requirements before February 9, 2022, so long as the employer is exercising reasonable good faith efforts to come into compliance. 

The January 10 date replaces the prior ETS deadline of December 6 that included requirements for employers to develop, distribute and implement a compliant written policy requiring most employees to either get vaccinated or undergo weekly testing, determine the vaccination status of each employee with acceptable proof of vaccination, and implement measures to support vaccination. Similarly, February 6 replaces the prior January 4 date that required weekly testing of unvaccinated employees. Also, OSHA said they were extending the time period for sending comments on the ETS, indicating that they still intend on having this Emergency Standard become a permanent one.

The DOL's caution that it will refrain from issuing citations where employers are exercising good faith to comply serves as a reminder of our previous guidance that employers need to be proactively advancing their planning and efforts to comply rather than waiting for the final outcome of litigation challenging the ETS.  

Many covered employers have been in the process of drafting the required policy and collecting information from employees concerning their vaccination status. The rest need to do so now. If you have questions about the ETS requirements or need guidance concerning your company's vaccination policy, please don't hesitate to contact a member of Spilman's COVID-19 Task Force.

Regarding the other federal vaccine mandates, enforcement of the Executive Order that would require most federal contractors and subcontractors to ensure their workplaces are fully vaccinated remains stayed. The Eleventh Circuit ruled Friday that the stay will remain at least through full consideration of the merits (which they want fully briefed by the end of January 2022). And, the CMS vaccination mandate is enjoined in 25 states (including Kentucky, Ohio, South Carolina and West Virginia, but not North Carolina or Pennsylvania though CMS’s website still says they are not enforcing the mandate anywhere). The federal government has appealed the injunction to the Supreme Court.
If you have any questions about this issue or any labor and employment questions, please contact us.
Labor & Employment Law Peter R. Rich