On Friday night, the Sixth Circuit Court of Appeals gave OSHA’s Emergency Temporary Standard (ETS) on COVID vaccination new life. As you may remember, OSHA issued an ETS requiring employers with 100 or more employees to adopt a vaccination policy that either made vaccination mandatory, or gave employees a choice between vaccination or weekly testing. The day after OSHA issued this ETS, the Fifth Circuit Court of Appeals entered an Order staying the ETS until further notice.
Well on Friday night, a new chapter in the life of the ETS began. The Sixth Circuit granted OSHA’s motion to dissolve the stay. This means the ETS is law again, at least for now. By late Friday evening, a petition requesting that the Supreme Court enter a stay preventing the ETS from going into effect was already on file. The Supreme Court has not ruled on this request yet.
So what now? Well, those employers covered by the ETS must now prepare to comply. Under the original ETS, employers were required to have written policies in compliance with the ETS in effect by December 5, 2021, with testing requirements going into effect on January 4, 2021. Clearly, those dates are out the window. OSHA already announced that it will postpone implementation until January 10, 2022 to give employers sufficient time to come into compliance. OSHA also announced that it will not issue citations for noncompliance with the weekly testing requirements before February 9, 2022, “so long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
If you cannot remember what the ETS requires, do not fret. You can read about OSHA’s requirements from our Nov. 5 blog post at: OSHA’s COVID Vaccination Rules – What You Need To Know | BeLabor the Point.
Florida employers also have another wrinkle to deal with. Earlier this month, Florida enacted a COVID vaccination law significantly limiting the instances in which an employer can impose a mandatory vaccination policy. It remains unclear to what extent the OSHA ETS preempts the Florida law. There is no doubt that there is much more to come as this saga continues. We will continue to keep you updated. But for now, you may want to have your employment lawyer on speed dial over the holidays.