Court Stay Lifted; OSHA's Mandatory Vaccination or Weekly Testing Rule is Back

Dec 20, 2021   Print PDF

Related Practice: Employment

Employers with 100 or more employees should take steps now to ensure they are in compliance with the Occupational Health and Safety Administration’s (OSHA) Emergency Temporary Standard (ETS) rule, which imposes a requirement for COVID-19 vaccination or weekly testing of all employees.

The requirements of the ETS were originally announced in early November 2021. However, after multiple states, trade unions, and individuals opposed the ETS, the Fifth Circuit Court of Appeals temporarily paused enforcement of the ETS while the cases were combined and considered on their merits. On December 17, 2021, a three-judge panel of the Sixth Circuit Court of Appeals issued a new order lifting the court-imposed stay and allowing the ETS to take effect.

The original implementation deadlines of the ETS were December 5, 2021 for all requirements other than testing unvaccinated workers, and January 4, 2022 to begin mandatory testing. However, OSHA has indicated that it will exercise lenience and discretion in its enforcement to give employers time to comply. Key language in OSHA’s statement issued on Saturday, December 18, 2021, reads as follows:

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.

While OSHA is exercising enforcement discretion and effectively extending its compliance deadlines, employers must demonstrate they are exercising “good faith efforts” to come into compliance. Employers should thus strive to implement all requirements other than weekly testing as soon as practicable, and begin mandatory testing of any unvaccinated employees by February 9, 2022,if not sooner.

Multiple litigants have already appealed to the US Supreme Court, asking that the stay be reinstated. However, given the steep fines OSHA can impose for non-compliance and that many of the requirements are easily satisfied without substantial resources, Stokes Lawrence recommends that employers with 100 or more employees strive to comply with the ETS as soon as possible, and not to wait for a potential Supreme Court stay.

For a detailed discussion of employer obligations under the OSHA ETS, please read our earlier article, COVID-19 Employer Update November 5, 2021: Mandatory Vaccination or Weekly Testing for Employers with 100 or More Employees. Contact Aviva Kamm, Sarah Wixson, Amy Alexander, Maricarmen Perez-Vargas, or any member of the Employment Group for compliance help.