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On December 17, 2021, a three judge panel of the US Court of Appeals, 6th Circuit reinstated the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) regarding workforce vaccinations in a 2-1 decision. Several entities are already preparing to appeal this decision, which would go to the U.S. Supreme Court. 

Currently the rule is in effect and the compliance dates with the requirements have been adjusted.  The new enforcement effective dates are outlined below.  For general information regarding the ETS, please visit our original post on the rule.

Background

This ETS was published on November 5, 2021. The 5th Circuit Court of Appeals issued a temporary stay regarding the enforcement of the ETS on November 6, 2021 and the stay was confirmed on November 12, 2021. Many appeals regarding the ETS were filed in multiple federal circuit branches and on November 16, 2021 a “lottery” was conducted to determine which of the 13 federal circuit courts would handle next steps. The 6th Circuit Court of Appeals was selected and reinstated the ETS on December 17, 2021. OSHA has issued the following updated compliance dates for the employer requirements.

The following items are required by January 10, 2022 for applicable employers:

  • Written vaccination policy
  • Determine vaccination status for all employees; create and maintain vaccination roster
  • Provide support for employee vaccination
  • Require employees to inform employer of positive COVID test or diagnosis
  • Remove any employee with positive COVID test or diagnosis
  • Require face masks for unvaccinated employees in the workplace or in a vehicle with other employees
  • Provide employees with information regarding the ETS
  • Report work-related COVID fatalities to OSHA within 8 hours and work-related COVID hospitalizations within 24 hours
  • Make certain records available

The following is required by February 9, 2022 for applicable employers:

  • Testing for employees that are not fully vaccinated on a weekly basis or within 7 days before returning to work if away from the workplace for 1 week or more.

Key Takeaway

Employers should begin or continue their compliance efforts with this ETS requirement with an eye towards the new implementation dates. We will provide updates if there are further legal milestones on this OSHA ETS.

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