As we recently reported, on Dec. 17, 2021, the Sixth Circuit Court of Appeals lifted the Fifth Circuit’s stay on the Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). Shortly after the Sixth Circuit’s decision was issued, several opponents of the ETS petitioned the Supreme Court to issue an emergency stay to block OSHA from enforcing the rule. The petitioners have asked the Supreme Court to put the appeal on a fast track. Justice Brett Kavanaugh has requested the Biden administration to respond to the petitions by Dec. 30, 2021.
The ETS requires employers with 100 or more employees to mandate COVID-19 vaccination or weekly testing. The ETS also requires employers to provide paid time off for employees to be vaccinated and ensure unvaccinated employees wear masks while at work. OSHA has made clear it will begin enforcing the ETS, other than the requirement that unvaccinated employees be tested for COVID-19 weekly, on Jan. 10, 2022. OSHA will not issue citations for violations of the ETS’s testing requirements until Feb. 9, 2022.
Since the Supreme Court may not decide whether to block the ETS before Jan. 10, employers should prepare to implement policies to comply with the ETS. In the meantime, we will continue to monitor the situation and will report on any future developments.