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Sixth Circuit Dissolves Stay of OSHA ETS COVID-19 Vaccination Mandate

December 18, 2021

The U.S. Court of Appeals for the Sixth Circuit recently dissolved the Fifth Circuit’s stay of the Occupational and Health Safety Administration’s (“OSHA”) COVID-19 vaccine emergency temporary standard (“ETS”).  With the stay dissolved, OSHA is again implementing the ETS, which requires all employers of 100 or more employees to institute vaccination status recordkeeping policies, require unvaccinated employees to become fully vaccinated or undergo weekly COVID-19 testing, and enforce mask-wearing for all unvaccinated employees.  The ETS defines “fully vaccinated” as receiving all doses required for a primary vaccination.  The full text of the ETS is available here, an OSHA fact sheet is available here, and OSHA FAQs are available here.

OSHA has stated that it will exercise enforcement discretion as to the compliance dates of the ETS to account for any uncertainty created by the stay.  In an announcement after the Sixth Circuit’s decision, OSHA stated that it will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022 if an employer is exercising reasonable, good faith efforts to come into compliance with the ETS.  OSHA’s statement is available here.

To ensure compliance with the ETS, covered employers should take the following actions (our previous guidance on the ETS is available here):

  • Provide COVID-19 information required by the ETS to employees;
  • Determine whether to permit weekly testing as an alternative to the vaccination requirement;
  • Develop a COVID-19 policy that addresses the requirements of the ETS;
  • Develop a process for collecting and recording COVID-19 vaccination statuses and/or test results; and
  • Develop a process for removing employees who have tested positive for COVID-19 from the workplace and ensuring that such employees do not return to the workplace until they meet return-to-work criteria.

Certain litigants in the Sixth Circuit case have already asked the Supreme Court to issue a stay, and we will continue to monitor this situation.  At this time, court-ordered stays on previously-released stricter vaccine requirements for federal contractors (see our previous alert here) and a separate ETS for certain healthcare employers are still in effect.

If you have questions about this or any other workforce issue, please contact your relationship attorney or one of Honigman’s Labor and Employment attorneys.

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