All eyes have been on the federal court system as the fate of the Occupational Safety and Health Administration (“OSHA”) Emergency Temporary Standard (“ETS”) is decided. Last month, OSHA implemented the ETS which set forth vaccination, testing and masking requirements for private-sector employers with 100 or more employees. For more details regarding coverage and compliance pertaining to the ETS, click here.
The ETS was met with almost immediate push back, and on November 12, the Fifth Circuit entered an order temporarily staying the enforcement of the ETS, meaning that the rule was “on pause” until the merits surrounding the ETS could be fully briefed and decided. The Sixth Circuit was chosen through a lottery system to be the federal circuit to hear the consolidated cases. In a rather unexpected decision, a three-judge panel of the Sixth Circuit, by a 2-1 vote, dissolved the stay and reinstated the ETS on December 17.
While the ETS is fully reinstated and employers certainly should focus on plans for compliance, OSHA has released a statement that it will be exercising enforcement discretion with respect to the compliance dates to compensate for any uncertainty created by the stay. OSHA will not issue citations for non-compliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the COVID-19 testing requirements in the ETS before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the ETS.
Going forward, aside from the brief reprieve provided by OSHA as discussed above, the ultimate fate of the ETS will still rest in the hands of the courts. Immediate appeals have been filed with the Supreme Court, asking that the stay be reinstated until a final decision is made.
It is possible the Supreme Court will reinstate the stay, which would relieve employers of any ETS compliance obligations until a final decision is rendered. This is far from guaranteed, however. At the present time, in the absence of a quick court order to the contrary, employers with 100 or more employees should be preparing their workforce and developing policies to ensure they are in compliance with the ETS by January 10, 2022. This will involve adopting a written plan that either requires vaccination or requires weekly testing and other protective measures. Employers should contact their CCJ attorney with questions.