OSHA COVID-19 Vaccination and Testing ETS – Update and Current Status

On Friday, December 17, 2021, the 6^th Circuit Court of Appeals lifted the stay of the OSHA COVID-19 Vaccination and Testing ETS ("ETS"), allowing the ETS to move forward.  Opponents of the ETS have filed a petition with the Supreme Court to block the ETS. 

Here is the latest information from OSHA, available on its webpage:

Litigation Update

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit's stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

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 noncompliance 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.

Understandably, employers likely have questions about next steps.  Below is a summary of current deadlines and recommendations in light of this new development.

1. By January 10, employers should comply with all aspects of the ETS (but for weekly testing, discussed below) which include, but are not limited to:
   • Determine vaccination status of each employee and obtain records of same;
   • Establish a written policy mandating vaccination or weekly testing in lieu of vaccination and distribute same to employees;
   • Ensure that unvaccinated employees wear face coverings when indoors and when occupying a vehicle with another person for work purposes;
   • Provide employees with information on the ETS, the employer's policy, vaccination efficacy and safety and protections against retaliation and discrimination.
2. By Feb. 9, employers should:
   • Implement weekly testing protocols for unvaccinated employees.  Here employers should document efforts to comply with the weekly testing requirement in the event that implementation is prevented/delayed due to lack of tests or other circumstances beyond the control of the employer. 

For employers that have not solicited vaccination status information from their employee workforce, it would be wise to start that process now, given the upcoming holidays. Employers should also prepare to distribute a written vaccination policy to their employee workforces by the January 10, 2022, deadline. Hand-in-hand with this, employers will want to think through how to implement the weekly testing protocols for employees who are not fully vaccinated. Also Keep in mind the importance of clear communication with the applicable union [for employers with a unionized workforce] and clear communication with employees about next steps.

At this point, the timeline for Supreme Court review of the 6^th Circuit's recent ruling is unclear.  There will likely be changes ahead. 

As these issues continue to develop and evolve, we will continue to monitor the changes and keep our clients informed.  Be on the lookout for further communications from the Bradley & Riley, PC team.  For more information, contact any member of the Labor and Employment Practice Group