OSHA Emergency Temporary Standard Stay of Enforcement Lifted

As we have previously reported, the Fifth Circuit Court of Appeals issued a stay of enforcement of the OSHA Vaccinate or Test Emergency Temporary Standard. On Friday, December 17, a panel of the Sixth Circuit Court of Appeals, where all cases have been transferred, in a 2-1 decision lifted the stay. Absent intervention by the entire Sixth Circuit judges, or the United States Supreme Court, the OSHA ETS is immediately enforceable. The first of such compliance requirements was set to begin on December 4, 2021. The Department of Labor has announced that rather than a tiered structure of compliance, OSHA will adopt one compliance date for all the ETS requirements – January 10, 2022. This means that employers subject to the ETS have three weeks to comply. Such employers will need to finalize (or in some cases draft) their ETS compliant vaccination or vaccination/test alternative policy, communicate the policy to employees, collect required vaccination data, and if choosing the test alternative, enforce masking and testing requirements.

What Happens Next?

It is likely that some of the states challenging the OSHA ETS will file an emergency appeal of the lifting of the stay order to the full panel of the Sixth Circuit, or the United States Supreme Court. The odds of the stay being reactivated are highly unlikely. Employers should immediately come into full compliance with the ETS. Failure to do so subjects covered employers to substantial fines.

Questions?

Leech Tishman will host a briefing on Wednesday, December 22 at 12:00 PM EST to address common questions and concerns. By Wednesday, it is expected that OSHA will have announced whether any extensions of time will be granted. We will also know the status of any emergency appeals. Register for this briefing here.

Employers with questions related to COVID-19 and the workplace following the ETS, or other questions related to employment law, should contact Philip Toomey.

Philip Toomey is Chair of the firm’s national Employment & Labor Practice Group, where he also leads the Public Sector Employment Group. He can be reached at 424.738.4400 or ptoomey@leechtishman.com.

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