On December 17, 2021, in a 2-1 decision, the 6th Circuit Court of Appeals allowed OSHA’s Vaccination and Testing Emergency Temporary Standard (“ETS”) to move forward by lifting an earlier court’s stay that had put the ETS on hold. In response to the court’s decision, OSHA has initiated an aggressive implementation and enforcement schedule.
While OSHA expects covered employers to begin complying immediately, the agency has said it will delay enforcement of the vaccination requirements of the ETS until January 10, 2022, and will wait until February 9, 2022, to start enforcing the optional testing component of the ETS.1 Both of those dates are coming up quickly.
OSHA ETS Overview
The ETS requires most private employers2 with 100 or more employees at any point during the effective period of the ETS to adopt a mandatory vaccination policy for all covered employers. In addition to adopting such a policy, the ETS gives employers the option of implementing an alternative weekly testing and public masking requirement for those who aren’t fully vaccinated.
The ETS also requires employers to determine each covered employee’s full vaccination status, maintain and update records of vaccination status, and provide copies of those records in limited circumstances upon request.
For employers that choose to adopt the alternative testing and masking option, unvaccinated employees must provide negative COVID-19 antigen test results weekly (for those employees who have regular in-person contact with others as part of their jobs), or within 7 days before having such contact (for those employees who don’t regularly come into an indoor workplace). All unvaccinated employees are also required to wear masks almost any time they are in a non-outdoor work setting with other people.
Employer Next Steps
Although the ETS is moving forward for now, the litigation process continues, as the parties challenging the ETS immediately appealed the court’s decision to the U.S. Supreme Court. And while the Supreme Court will ultimately determine the ETS’s fate, in the interim, OSHA has made it clear that it intends to move forward with full enforcement.
As a result, covered employers will have to decide how best to restart their compliance efforts. To help with this process, USI has a checklist and an FAQ to help you plan for compliance, while we continue to monitor the legal developments to keep you informed.
