The OSHA COVID-19 Vaccination and Testing Rule is Back…For Now

On Friday, December 17, 2021, the Sixth Circuit issued a ruling allowing the Occupational Safety and Health Administration (OSHA) to move forward with its COVID-19 vaccination or testing rule for large employers. Pending further appeals to the Supreme Court, this means covered employers will once again have to take steps to plan for compliance, with OSHA announcing extended enforcement deadlines of January 10, 2022 (for general compliance) and February 9, 2022 (for testing requirements). 

Last month, OSHA released its Emergency Temporary Standard (ETS) regarding COVID-19 vaccination and testing, which took effect on November 5, 2021. Under the original rule, most private employers with 100 or more employees must require vaccination or weekly COVID-19 testing for its employees by January 4, 2022. Other aspects of the rule, including the implementation of a policy, the collection of employees’ vaccination status, and a masking requirement, were scheduled to go into effect on December 6, 2021. For more information, please refer to our webinar on this rule, here.

Challenges were subsequently filed with Circuit Courts across the country, including one in the Fifth Circuit Court of Appeals, which temporarily paused the ETS just one day after the rule’s implementation. On November 12, 2021, the Fifth Circuit Court of Appeals stayed the ETS, effectively halting the enforcement of the rule pending further consideration. Following this ruling, the challenges to the ETS were consolidated before the Sixth Circuit Court of Appeals, where it was considered by a three-judge panel. On Friday, December 17, 2021, the three-judge panel voted in a split decision to lift the Fifth Circuit’s stay of the ETS. OSHA released a statement on Saturday, December 18, 2021, indicating it would exercise its discretion and not issue citations for noncompliance with any requirements of the ETS before January 10, 2022. Additionally, it indicated it would also not issue citations for noncompliance with testing requirements before February 9, 2022, as long as covered employers are exercising reasonable, good faith efforts to come into compliance with the standard.

Following the Sixth Circuit’s ruling, a number of emergency appeals were filed with the United States Supreme Court, again asking for a stay of the ETS. It is possible that the Supreme Court may decide to intervene as we approach the new deadlines.

What does this mean for employers? While the ultimate survivability of this rule is still in question due to the pending court actions, and the deadlines for compliance have been pushed out slightly, the ETS is currently back in effect. This means employers should confirm the rule’s applicability to them and, if applicable, should consider resuming their efforts to come into compliance with this rule, including:

  • Establishing and implementing a policy on ETS compliance by January 10, 2022;
  • Gathering the vaccination status of all employees, and maintaining records of vaccination status;
  • Distributing certain required information to employees;
  • Requiring unvaccinated workers to wear a face covering;
  • Requiring employees to promptly notify their employer of a positive COVID-19 test or diagnosis and immediately removing those employees with positive tests or diagnoses from the workplace;
  • Reporting work-related COVID-19 hospitalizations and fatalities to OSHA;
  • By February 9, 2022, requiring employees to be fully vaccinated or begin weekly testing, with the caveat that employees may request medical or religious accommodations; and
  • Continuing to monitor for any further legal rulings.

We will provide additional information and updates regarding the COVID-19 Vaccination and Testing Emergency Temporary Standard as developments unfold. In the meantime, Harter Secrest & Emery’s Labor and Employment attorneys are here to answer any questions you may have regarding the ruling. Please contact any Labor and Employment team member at 585.232.6500 or 716.853.1616.

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