Appellate Court Dissolves Stay on Federal Government’s COVID-19 Vaccination and Testing Emergency Temporary Standards and Reinstates Vaccine Mandates for Large Employers

Published December 21, 2021

By Shaye Schrick

On December 17, 2021, the Sixth Circuit dissolved the Fifth Circuit’s stay on the U.S. Department of Labor’s Occupational Health and Safety Administration’s (“OSHA”) Vaccination and Testing Emergency Temporary Standards (“ETS”), allowing the federal government to implement its workplace health standard.  OSHA’s ETS applies to employers with 100 or more employees and, most significantly, requires them to ensure employees are either fully vaccinated or undergo weekly COVID-19 testing.  In addition, employers must:

  • Establish a workplace vaccination policy;
  • Determine and document employee vaccination status;
  • Provide employees reasonable time (some paid) to become vaccinated and recover from side effects;
  • Implement notification requirements for COVID-19 cases and remove employees who test positive from the workplace for specified periods of time;
  • Require face coverings indoors and in shared vehicles for employees who are not fully vaccinated, with some limited exceptions;
  • Provide information to employees about the ETS, vaccines, protections against discrimination and retaliation, and laws that provide for criminal penalties related to falsified vaccination documents;
  • Report COVID-19 fatalities and hospitalizations to OSHA; and
  • Make certain information available to employees.

To account for uncertainty created by the stay, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022, and it will not issue citations for noncompliance with the standard’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.

While the federal ETS is now in place, as of the date of this alert, several parties have filed emergency applications with the United States Supreme Court, attempting to reinstate the stay and preclude enforcement of the ETS.  Unless and until the Supreme Court addresses these challenges, employers with 100 or more employees must proceed with implementing the ETS immediately.

Unless the federal ETS is blocked again, Cal/OSHA will have 30 days to adopt the federal ETS or adopt its own regulations that are at least as effective as those set forth by the federal government.

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