Employment Law Bulletin | December 20, 2021

OSHA COVID-19 ETS Vaccination and Testing Requirements Reinstated

On November 10, 2021, we reported on the new federal Emergency Temporary Standards (ETS) issued by OSHA at President Biden’s direction.  As a reminder, the central focus of the ETS is a requirement that employers with 100 or more total employees implement and enforce a mandatory vaccination and testing program for all employees.  More information on the details of the ETS requirements can be found in our November newsletter.

In response to a barrage of lawsuits challenging the legality of the ETS, the Fifth Circuit Court of Appeals promptly stayed enforcement of the ETS so that the courts could have time to look into the issues.  On Friday, December 17, citing the need to protect the health of the public against further spread of infection, the Sixth Circuit Court of Appeals lifted the stay making the ETS effective immediately and allowing OSHA to proceed with enforcement of the rules.

The good news is that OSHA announced that it will postpone enforcement of the compliance deadlines set forth in the ETS.  Enforcement of the December 5, 2021 compliance deadline for program implementation, masking, isolation and paid time off requirements has been extended to January 10, 2022, while enforcement of the January 4, 2022 compliance deadline for testing requirements has been extended to February 9, 2022.

OSHA hopes that these extensions will give employers a little breathing room to get in step with the ETS if they have not started the process already.  The agency emphasized that it will use its discretion in levying citations and fines for violations of the ETS with employers who exercise reasonable, good faith efforts to achieve compliance within these new timeframes.

If you have 100 or more employees and have not begun preparing your business for compliance with the ETS, it is important to move quickly now.  Contact an SMT employment attorney for guidance on these new regulations.

Kari J. Brown

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Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown