OSHA Emergency Temporary Standard Revived!

DEADLINES EXTENDED BUT FINAL STATUS STILL UNCERTAIN

On November 5, 2021, the Occupational Health and Safety Administration (“OSHA”) issued its Emergency Temporary Standard (“ETS”) relating to vaccinations against Covid-19.  Almost immediately, lawsuits were filed in various federal courts across the country challenging the ETS’s validity.  The United States Court of Appeals for the Fifth Circuit immediately blocked the ETS from going into effect, although several other Circuits had yet to weigh in.   Ultimately, the multiple court challenges, including the Fifth Circuit case, were consolidated in one case before the United States Court of Appeals for the Sixth Circuit.  On December 17, the Sixth Circuit Court of Appeals dissolved the Fifth Circuit’s stay.  In other words, the ETS is back on.  At least for now.

Among other things, the ETS effectively gives covered employers (those with 100 or more employees) a choice. The covered employer must either: (1) adopt a written mandatory vaccination policy for its employees (subject to medical or religious exemptions); or (2) adopt written policy which gives employees a choice between vaccination or regular testing and face coverings. To comply with the ETS, employers will have to gather from each employee “acceptable proof of vaccination status” which could include, among other things, a copy of the COVID-19 vaccination record card or an affidavit attesting to vaccination status. The employer will have to maintain a “roster” of each employee’s vaccination status, which must be maintained only so long as the ETS remains in effect.

According to OSHA, to account for any uncertainty and delay created by the stay and to provide covered employers with “sufficient time” to come into compliance, OSHA will not issue citations for “non-compliance with any requirements of the ETS” before January 10, and will not issue citations for non-compliance with the testing standards before February 9, so long as employers are “exercising reasonable, good faith” efforts to come into compliance.

While the ETS has been revived for now, the ETS’s survival is still uncertain.  Shortly after the Sixth Circuit lifted the stay, several states and private organizations filed an appeal with the United States Supreme Court.  The Supreme Court has now scheduled an oral argument for January 7, 2022.  It is likely the Supreme Court will give some indication of its thinking during the argument.  And, most probably, the Court will issue some formal ruling within days after the argument is completed – perhaps before the first enforcement date of January 10.

In the meantime, in an abundance of caution, covered employers should have ETS-compliant policies ready to implement, and begin the process of identifying testing options as soon as possible.