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Legal Alert

OSHA's COVID-19 Vaccine and Testing Mandate Is Back in Business After Sixth Circuit Court of Appeals Lifts Stay

December 20, 2021

Late Friday, Dec. 17, 2021, the Sixth Circuit Court of Appeals lifted the stay previously placed on OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), putting large employers back on notice that they need to comply with the ETS. Several petitioners immediately filed emergency applications with the U.S. Supreme Court, requesting that the Supreme Court reinstate the stay of the ETS.
 
OSHA promptly announced on Saturday, Dec. 18, that it is extending the deadlines for compliance with the ETS in 2022:

  • To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance 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.

With this announcement, employers with 100 or more employees now have until Jan. 10, 2022, to comply with all the ETS requirements except for testing programs. The deadline to begin testing programs is Feb. 9, 2022.
 
Next Steps for Employers
Right now, the ETS is in effect. It is difficult to predict how the Supreme Court will handle the emergency applications that have been filed. Thus, the final result of the litigation over the ETS is still uncertain. The best course for most covered employers is to make plans to comply with the ETS according to OSHA’s new deadlines.

We Can Help
Maslon’s Labor & Employment Group is available to answer questions about the litigation involving the ETS and help employers navigate all the issues being faced in the workplace due to COVID-19. 

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