OSHA's Vaccination or Testing Mandate is Back in Effect

The on-again/off-again Occupational Safety and Health Administration (OSHA) Vaccination and Testing Emergency Temporary Standard (ETS) for large private employers is on-again after being revived late Friday, Dec. 17 by the U.S. Court of Appeals for the Sixth Circuit. The Sixth Circuit dissolved a Nov. 12 Fifth Circuit decision that temporarily blocked the ETS from taking effect, pending further litigation. As a reminder, the OSHA ETS, in part, mandates that all private employers with 100 or more employees ensure their employees are fully vaccinated against COVID-19 before entering the employer’s worksite or, at the employer’s option, require employees who remain unvaccinated and want to come to the worksite to properly wear an ETS-compliant face covering and produce a negative COVID-19 test at least weekly.

In response to this most recent judicial development, OSHA is moving forward with implementing and enforcing the ETS. However, in order to provide employers with "sufficient time to come into compliance", OSHA announced that it will not issue citations until Jan. 10 (original compliance date was Dec. 6) for most of the ETS’s requirements (e.g., establishment and implementation of a vaccination policy, determination of employees’ vaccination status, provision of paid time off to receive and recover from the vaccine vaccinations and recovery, requirement that unvaccinated employees wear a face covering), and until Feb. 9 (original compliance date was Jan. 4) for the ETS’s optional testing alternative, as long as an employer exercises reasonable, good faith efforts to comply with the ETS.

Opponents of OSHA’s vaccination or testing ETS immediately petitioned the US Supreme Court to once again halt the ETS pending further litigation. Stay tuned for further developments, but in the meantime, employers should continue their efforts to combat the spread of the virus, which includes complying with the ETS requirements.

For further details on the ETS, key questions, and steps employers should be taking now, see these earlier blogs:

• OSHA's Vaccine and Testing Guidance: Your Top 5 Questions Answered (Nov. 4)

• COVID-19 Vaccinations and Testing: Key Decisions You’ll Need to Make (Nov. 8)

• The COVID-19 Testing Alternative: Employers Have Questions, Concerns (Nov. 11)

• Charting a Path to Worksite Safety, With or Without the OSHA ETS (Nov. 18)

Dorian Smith
by Dorian Smith

Partner, Mercer’s Law & Policy Group

Jennifer Wiseman
by Jennifer Wiseman

Principal, Mercer’s Law & Policy Group

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