On Friday, December 17, 2021, the 6th Circuit Federal Court of Appeals reinstated the Occupational Safety and Health Administration’s (OSHA) federal emergency temporary standard (ETS) for COVID-19. The 6th Circuit court decision reverses the stay ordered in November by the 5th Circuit and allows OSHA to resume ETS implementation and enforcement nationwide.
The ETS establishes a mandatory vaccination policy requirement for private employers with 100 or more employees. ETS opponents have already filed an appeal with the U.S. Supreme Court challenging the 6th Circuit’s decision.
OSHA Response and Guidance
OSHA has published the following guidance regarding the reinstatement:
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide 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 noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.
This means that employers will have until January 10, 2022, to comply with the requirements that were initially slated to begin on December 6, 2021. Additionally, weekly testing requirements for unvaccinated employees will be delayed until February 9, 2022, instead of January 4, 2022.
Impact on Employers
The 6th Circuit’s decision suggests that the ETS may survive its legal challenges. Employers subject to the ETS should monitor legal developments closely. They should also consider what measures they would need to adopt to be considered to have made reasonable, good faith efforts to comply if the Supreme Court upholds the ETS.
To comply with the ETS, employers must:
- Establish a policy on vaccination
- Determine vaccination status of each employee and obtain acceptable proof of vaccination
- Maintain records and roster of vaccination status for each employee
- Provide support for employee vaccination
- Provide each employee information about the ETS
- Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes
- Require employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis
- Remove any employee who received a positive COVID-19 test or COVID-19 diagnosis
- Report work-related COVID-19 fatalities to OSHA within 8 hours and work-related in-patient hospitalizations within 24 hours
- Make certain records available
We will continue to keep you updated on this topic as news develops. Please reach out to your trusted advisors at Hausmann Group if you have any questions.