The Wild ETS Ride Continues: The Stay Was Lifted, Now What?

On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit lifted the stay of OSHA’s Emergency Temporary Standard (ETS). As a result, the ETS is now in effect for all employers with 100 or more employees. 

You will recall that the ETS includes a deadline of December 5 for employers to determine the vaccination status for all employees and to establish a vaccination policy. That deadline came and went while the stay was in effect. OSHA updated its website over the weekend with the following notice:

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. 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, 2022, 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.

Therefore, all employers now have a grace period until January 10 to obtain proof of vaccination, develop the required roster, and issue a policy, with an additional grace period until February 9 to comply with the testing requirements.

Over the weekend, emergency motions were filed with the U.S. Supreme Court requesting that they reissue the stay. Thus, we fully expect that the rollercoaster ride we have been on with this ETS will continue. 

What should employers do now? Given the time it can take to collect proof of vaccination and develop an employee roster reflecting the vaccination status for all employees, we continue to encourage employers with 100 or more employees to start there. In addition, we encourage employers to begin preparing a vaccination policy. You can wait to see what the Supreme Court does before issuing the policy, but the time to start preparing for implementation has arrived!

If you have questions regarding the specific requirements of the ETS, or need assistance with preparing a policy, please don’t hesitate to contact alert author Suzanne King, or any member of the Pierce Atwood Employment Practice Group.