Update on OSHA’s Emergency Temporary Standard

The vaccine/testing mandate for private employers with 100 or more employees is on! Now it’s off! Now it’s back on again, maybe.

In the short time since the Occupational Safety and Health Administration (“OSHA”) released its Emergency Temporary Standard (“ETS”), a myriad of legal challenges, court decisions, appeals, and uncertainty has followed.

On November 5, 2021, OSHA released a 500-page ETS mandating private employers with 100 or more employers to either require their employees to get a COVID-19 vaccine or be subject to weekly testing and mask requirements. The very next day, the United States Court of Appeals for the Fifth Circuit issued a stay on the ETS and affirmed its decision a week later, effectively halting the ETS.

As is standard operating procedure when lawsuits challenging a federal order are filed in multiple jurisdictions, the Judicial Panel on Multi-district Litigation consolidated the cases and selected the United States Court of Appeals for the Sixth Circuit to hear the challenges. On December 17, 2021. The Sixth Circuit Court of Appeals issued a 2-1 decision to lift the stay, reviving the ETS.

The United States Supreme Court later agreed to review the challenges. Oral arguments are scheduled to be heard on January 7, 2022.

On December 18, 2021, OSHA announced it would not issue citations for noncompliance with the ETS before January 10, 2022. Nor will it issue citations for noncompliance before February 9, 2022, provided the employer is showing a good faith effort to come into compliance.

Covered employers across the country are rightfully asking “Are we required to comply or not?”. As it currently stands, they are.

The Supreme Court is unlikely to follow the Fifth Circuit’s lead and issue a next-day decision. That, coupled with the Sixth Circuit’s ruling, means the ETS will likely be in effect on January 10.

A Supreme Court decision will bring much needed clarity. In the meantime, employers should prepare to comply with the ETS. Contact Julie Ryan at [email protected] to learn more.