Companies with a 100 or more employees that fall within the requirements of the ETS will want to prepare to come into compliance with the ETS by no later than the extended deadlines provided by OSHA.
As previously detailed here, the Occupational Safety and Health Administration (OSHA) on November 4, 2021, issued an emergency temporary standard (ETS) applicable to businesses with 100 or more employees requiring, among other things, that employees either be vaccinated against COVID-19 or produce a weekly negative test. The ETS was stayed nationwide on November 12, 2021, by order of the U.S. Court of Appeals for the Fifth Circuit. The various legal challenges to the ETS were subsequently consolidated in the U.S. Court of Appeals for the Sixth Circuit for further proceedings.
On December 17, 2021, the Sixth Circuit dissolved the stay, allowing OSHA to resume efforts to implement the ETS.
What Does This Mean for Covered Employers?
Shortly after the Sixth Circuit dissolved the stay, OSHA announced that it would not take action against businesses for noncompliance with any portion of the ETS before January 10, 2022, and specifically with respect to the ETS's testing requirements, before February 9, 2022, "so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard."
None of the 22 approved State Plans, including Puerto Rico, covering private employers have taken steps to enact an ETS, but they are required to notify OSHA of their intentions to do so within 15 days of promulgation of the standard, and to act within 30 days. In addition, California's Cal/OSHA has approved revisions to the state's existing COVID-19 emergency temporary standard. It is unclear whether it will take further action now with respect to the OSHA ETS. It is also unclear whether the Fifth Circuit stay that was in effect until December 17 tolls the deadlines for OSHA State plan adoption deadlines. The ETS has immediate effect in the other 29 states and territories, albeit with the new enforcement deadlines.
Emergency Petition for Review and Stay
Shortly after the Sixth Circuit Court's Order, 26 trade groups filed an Emergency Application for review before the United States Supreme Court. The Application requests an immediate stay of the ETS pending review by the Supreme Court. The opposition to the Application is due to be filed with the Supreme Court by December 30, 2021 at 4 p.m. It is unclear, at this time, whether the Supreme Court will agree to review the ETS or grant a stay pending review of the Emergency Application.
Does the Lifted Stay Mean That Conflicting State and Local Laws Are Preempted By the ETS?
Employers in states and localities that prohibit or restrict vaccination or face covering requirements must be mindful of state and local laws, ordinances, and executive orders that might limit the employer's ability to require vaccination or otherwise conflict with ETS requirements, particularly if an employer opts for the ETS's mandatory vaccination policy. While the Sixth Circuit lifted the stay, it has yet to decide the case on the merits, including arguments over whether the ETS overrides state or local laws due to federal preemption.
Companies with a 100 or more employees that fall within the requirements of the ETS will want to prepare to come into compliance with the ETS by no later than the extended deadlines provided by OSHA. For those employers in state and localities that prohibit or restrict vaccination or face covering requirements, those employers should discuss planning and preparation options with their internal or external employment counsel. For a more detailed review of the various requirements of the ETS, please see our prior Eye on Washington article, available here.
For more information, register for our webinar, COVID-19 Vaccination Mandate Updates, here.
ADP Compliance Resources
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Updated on December 20, 2021