On Friday evening (December 17th) the Sixth Circuit Court of Appeals dissolved the stay of OSHA’s Emergency Temporary Standard (ETS) which requires employers with 100 or more employees to mandate that employees get vaccinated against Covid-19 or be subject to mandatory weekly testing. You can read my blogpost summarizing the ETS requirements here.
Later Friday night numerous states and interest groups filed emergency applications with the U.S. Supreme Court seeking a stay of the ETS, as well as petitions for certiorari, which are requests that the Supreme Court take the case for review. We do not yet know whether the Supreme Court will take the case (here is one bet that it will). Hopefully, we will know the answer to that soon. In the meantime, what should employers do?
Employers should prepare to comply with the ETS, though they now have more time to do so. In light of the Sixth Circuit ruling, and the likelihood of further court review, OSHA issued the following statement over the weekend:
To provide employers with sufficient time to come into compliance, OSHA will not issue any citations for noncompliance with any of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9th, 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.
Reasonable, good faith efforts to comply are key pending final resolution of the issue. This situation will continue to evolve. As always, check here for updates!