As we round out the year, here’s a bit of news, with more likely to come, regarding the U.S. Department of Occupational Safety and Health Administration’s (OSHA) COVID-19 Temporary Emergency Standards (ETS).
As we wrote earlier, on November 4, 2021, OSHA issued its ETS which applies to private employers with 100 or more employees (Covered Employers). Among other things, the ETS requires Covered Employers to have a COVID-19 vaccination policy requiring all employees to be fully vaccinated with certain exceptions, to provide for weekly testing of non-fully vaccinated employees, and to require face coverings. Under the ETS, Covered Employers were required to comply with the ETS other than the testing requirements by December 6, 2021 and to comply with the testing requirements beginning January 4, 2022.
On November 6, 2021, the Fifth Circuit Court of Appeals issued a stay preventing implementation of the ETS while the court considered legal challenges to the ETS. Then, on December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay. The following day, OSHA issued a press release announcing that it would not be issuing citations for noncompliance with the ETS before January 10, 2022 and would not be issuing citations for noncompliance with the testing requirements of the ETS before February 9, 2022.
Several of the groups challenging the ETS have asked the U.S. Supreme Court for review. It is anticipated that the Supreme Court will not review the competing stay and dissolution until early January 2022, so stay tuned.