As 2021 draws to a close, the drama surrounding the federal vaccine mandates continues to disrupt planning efforts for employers across the country. On December 17th, a three-judge panel of the United States Court of Appeals for the Sixth Circuit lifted the Fifth Circuit’s previous November 12th injunction and reinstated OSHA’s Emergency Temporary Standard (ETS).
By way of reminder, this particular ETS mandates vaccines or testing for employers with 100 or more employees company-wide, along with a slew of record-keeping and policy requirements. In light of this recent reimplementation, OSHA has released a statement indicating that the Agency will not issue citations for noncompliance with any ETS requirements before January 10th, 2022, and will not issue citations for noncompliance with the employee testing requirements before February 9th, 2022, so long as an employer is “exercising reasonable, good faith efforts to come into compliance.” In other words, standards originally scheduled to take effect on December 6th (including vaccine verification, masking requirements, establishing a written policy, providing vaccine information and more) will now begin on January 10th, 2022.
Although the OSHA ETS has been reinstated for now, several petitioners have already appealed to the U.S. Supreme Court to reinstitute the Fifth Circuit’s nationwide stay. Since Justice Brett Kavanaugh is assigned to the Sixth Circuit, he will either make a decision on his own or will distribute the application to the full Court for consideration. Regardless, covered employers should review initial implementation plans, prepare to comply with the ETS, and be on the alert for new developments related to this mandate.
If you have any questions or need assistance complying with the OSHA ETS, please contact any Meyers Roman employment attorney: