Friday evening, the Sixth Circuit Court of Appeals lifted the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) mandating COVID-19 vaccination or testing for employers with over 100 employees. The Sixth Circuit held that OSHA did not exceed its authority in issuing the ETS because federal law requires the agency to issue an emergency standard “if necessary to protect workers from a ‘grave danger’ presented by ‘exposure to substances or agents determined to be toxic or physically harmful or from new hazards.’”
In response to the Sixth Circuit’s decision, OSHA adjusted the compliance dates for the ETS. Covered employers must now determine the vaccination status of each employee, keep records of vaccination status, provide specific information about vaccines, and develop and implement written policies regarding vaccination and testing by January 10, 2022. We set forth in detail what employers had to do in our previous alert, in the section titled: What Is Required. Employers who permit unvaccinated employees to undergo weekly testing rather than require vaccination must now begin weekly testing of those employees on or before February 9, 2022.
There are several emergency applications requesting a stay of the ETS. While it is difficult to predict precisely what will happen next, the Supreme Court will likely take some action on the ETS before January 10. In the meantime, employers with over 100 employees should plan to comply with the new deadlines amended by OSHA until the Court weighs in. As always, Gray Reed is here to assist employers in preparing to implement the ETS, including development of workplace vaccination and testing policies.