On Friday, the Sixth Circuit Court of Appeals lifted the stay on OSHA’s ETS mandate. The mandate applies to employers with at least 100 employers and requires covered employers to, among other things, require either vaccination or weekly COVID testing.
Our readers will recall that in early November, the Fifth Circuit Court of Appeals had issued a decision concluding that the ETS “grossly exceeds OSHA’s statutory authority” and ordered OSHA to “take no steps to implement or enforce” the ETS “until further court order.” In response, OSHA suspended the implementation and enforcement of the ETS pending future developments in the litigation. That decision put a halt to the deadlines in the original mandate, which were December 6, 2021 and January 4, 2022 (the deadline to ensure that unvaccinated employees were being tested for COVID-19 at least weekly). In response to that stay, all of the legal challenges to the ETS were consolidated and the Sixth Circuit was chosen by lottery to hear them.
Now that the Sixth Circuit has issued its decision, OSHA has provided new deadlines for compliance. Covered employers will be required to comply with all aspects of the ETS other than testing by January 10, 2022 and with the testing requirements by February 9. This is the statement issued by OSHA:
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 non-compliance 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.
To further complicate matters, petitions have already been filed with the U.S. Supreme Court to challenge the ETS mandate. However, given the new and impending deadlines, employers would be wise to proceed with coming into compliance with aspects of the ETS required by January 10, including the notices, policies, and vaccination information.
Finally, public employers should note that Maine has a “state plan”, meaning that Maine is required to adopt and enforce for public employers all of OSHA’s occupational safety and health standards. The Maine Board of Occupational Safety and Health had not addressed the ETS pending the outcome of the Sixth Circuit’s review. Now that we have that decision, it is expected that the Maine Board will review the ETS mandate and adopt emergency rules that must, at a minimum, extend the same requirements to Maine’s public employers.
Employers should keep in mind that this is still a temporary emergency standard and a proposal for a permanent standard. OSHA is extending the comment deadline on that permanent standard until Jan. 19, 2022, at www.regulations.gov in Docket No. OSHA-2021-0007.
We will continue to keep you updated, and will provide a reminder of the ETS requirements in the near future.