Last Friday evening, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit upheld OSHA’s Emergency Temporary Standard (ETS) on COVID-19 vaccination applicable to employers with more than 100 employees.  The ETS was originally issued on November 5 and quickly stayed by the federal Fifth Circuit Court of Appeals.  As explained in our prior alert, the ETS generally requires employers with 100 or more employees to mandate COVID-19 vaccinations or, alternatively, to allow non-vaccinated employees to test for COVID-19 on a weekly basis and wear a mask in the workplace: OSHA Publishes Rule Mandating Vaccines for Employers with 100 or More Employees

The stay imposed by the Fifth Circuit is now dissolved and OSHA is taking the position that covered employers must take steps to comply with the ETS. OSHA has stated that, as long as employers are making "reasonable, good-faith efforts to come into compliance,” it will not issue citations for noncompliance until January 10, 2022 for all requirements except for the weekly testing requirement which is extended through February 9, 2022. 

This past weekend, opponents of the OSHA rule filed an emergency stay application and a petition for review with the U.S. Supreme Court.  Unless the Supreme Court overrules the Sixth Circuit’s decision, employers will be required to comply with the ETS or risk citations by OSHA.  Large employers covered by the ETS should take steps to be prepared to comply with the ETS.  

Our employment law team is ready to advise regarding this large employer rule and has developed a sample policy for employers to use to implement the requirements of the rule.  Please contact any of us to discuss your specific needs.  In the meantime, we will keep you posted as developments occur.