On December 17, 2021, the Sixth Circuit Court of Appeals lifted the stay of the OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS). As a result of this ruling, the ETS is currently in effect. Several appeals have already been filed with the US Supreme Court on this ruling so employers should continue to watch for developments.
After the ruling, OSHA released a statement saying they “will not issue citations for non-compliance 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, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” This means that OSHA will not enforce any of the ETS requirements until January 10, 2022 and weekly COVID testing of unvaccinated employees must begin by February 9, 2022.
As a reminder, states like California, Oregon and Washington have their own state OSHA plans which allow them to either adopt the Federal OSHA ETS as is or create their own stricter standard. In these states, the Federal OSHA ETS will not immediately take effect until the state agency decides how they will proceed. Employers in states with their own OSHA plan should monitor for updates from these agencies in the coming weeks.
For reference, here is a link to our overview of the ETS requirements when they were announced in November.