UPDATED | Stay Lifted on OSHA’s Vax/Test + Mask ETS

Updated December 29, 2021

On Friday, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit issued an order lifting the stay of OSHA’s emergency temporary standard (ETS) on COVID-19 applicable to most employers with 100 or more employees. Several parties immediately filed emergency applications to the United States Supreme Court asking it to reinstate the stay pending Supreme Court review. In response to the stay being lifted, OSHA updated  its website to state that, due to the uncertainty caused by the stay, it was modifying the compliance dates related to the ETS, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” Specifically, the initial compliance deadline by which employers must comply with all requirements of the ETS other than testing is now January 10, 2022. The deadline to begin weekly testing of employees who have not received all doses of the initial series of a COVID-19 vaccine is now February 9, 2022.  

What does this mean for employers? Unless and until the Supreme Court reinstitutes the stay, employers will need to be prepared to show that they have made “reasonable, good faith efforts” to comply with the ETS in order to avoid citations and potential fines. The deadlines are tight, so, employers who have not already prepared to comply with the ETS should do so promptly.  We do not anticipate a decision on the emergency application to the Supreme Court until after the first of the year, as the Biden Administration has until December 30, 2021 to respond, and oral arguments have been scheduled for January 7, 2022. This will make it challenging for employers to react and implement a policy by January 10, 2022 should the Supreme Court decide not to reinstitute the stay or simply fail to rule on the stay by January 7, 2022. Thus far, OSHA has given no indication that it will further delay compliance deadlines while the matter is pending before the Supreme Court. 

While the key dates have been pushed back, the requirements of the ETS have not changed. It requires that covered employers publish policies on vaccination, determine employee vaccination status and keep a roster reflecting that status, support vaccinations with paid time off for vaccination and recovery, require that employees notify the employer of a positive testing and remove such employees (and employees who have been otherwise diagnosed with COVID-19) from the workplace, require face coverings for unvaccinated workers, publish certain other information relating to the ETS, report work-related COVID-19 fatalities and hospitalizations, and comply with certain recordkeeping and informational requirements. As noted above, unless a new stay is implemented, employers will have to comply with these requirements by January 10, 2022. Further, if an employee has not completed the entire primary vaccination (i.e., one shot of the Johnson & Johnson vaccine or two shots of the Pfizer or Moderna vaccines) by February 9, 2022, employers must require that the employee submit the results of a COVID-19 test weekly, with limited exceptions. We provided an outline of the requirements in our prior article.  

In states that operate OSHA-approved state plans, which are required to adopt standards “at least as effective” as the ETS, the deadlines may be different. There are currently 22 state plans covering both private sector and state and local government workers, and there are six state plans covering only state and local government workers. Information on state plans can be found here. The ETS is not in effect in those states (for the workers covered by the state plans) unless the state plan adopts the ETS or similarly effective standards.  

We will continue to monitor decisions related to the ETS, along with the stay on the CMS vaccine mandate (which is no longer nationwide, but applies in 25 states), the nationwide stay of the federal contractor vaccine mandate, and the potential application of the ETS to worksites covered by the Healthcare ETS issued in June of 2021, the non-recordkeeping portions of which were recently withdrawn by OSHA. Please contact any member of our Labor, Employment & Immigration Group if you have questions or need assistance in implementing vaccine and/or testing mandates. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.