Stay Lifted - OSHA Updates Compliance Timelines Under ETS

December 20, 2021

ETS Includes Vaccine & Testing Requirements for Companies of 100 or More Employees 

 

This past Friday, December 17th, the Sixth Circuit Court of Appeals removed the stay, or "pause" to OSHA's implementation of private company/employer (100+ employee) COVID-19 vaccine and testing requirements (commonly referred to as the "ETS"). 

 

In a 2 to 1 decision, the Court agreed with OSHA that the ETS is necessary to protect workers from COVID-19, and that a “grave danger” is present as a result of COVID-19. The Sixth Court also rejected the earlier Court's conclusion that OSHA had overstepped its regulatory power, (that OSHA was establishing health policy under the ETS, instead of addressing safety concerns in the workplace). 

 

Following the decision, on Saturday, December 18th, OSHA issued the following statement:

 

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. OSHA will work closely with the regulated community to provide compliance assistance.

 

What's Next?

 

Pending litigation and cases regarding COVID-19 requirements may be consolidated through the appeals process, and collectively considered by the U.S. Supreme Court, who would determine final applicability/legality on a number of COVID-19 requirements, in the coming weeks. In the interim, IAM strongly encourages all members to review the information and timelines for the outlined vaccine and testing requirements. We will continue to provide updated information, alongside any changes in requirements as known. An OSHA-issued fact sheet and FAQ summary may be viewed here.

 

For more information or questions on any of the initiatives or issues highlighted, please contact Bryan Vickers (703-403-2882, bvickers@pacellp.com) with IAM's Government and Regulatory Affairs Team.