OSHA’s Vaccination or Testing Mandate for Large Employers is Back On… For Now

Shortly after OSHA issued its Emergency Temporary Standard (ETS) mandating vaccination or weekly testing for employers of 100 or more, legal challenges in the federal district courts stalled the implementation of the deadlines for compliance. On December 17, 2021, the Sixth Circuit Court of Appeals – the court designated to hear the consolidated challenges filed in multiple districts – lifted the stay, clearing the way for the implementation of the ETS mandates.

The New ETS Deadlines: Initially, employers were expected to comply with the ETS’s vaccination verification and masking requirements by December 6, 2021, and implement periodic testing for unvaccinated workers by January 4, 2022. In response to the Sixth Circuit ruling lifting the stay, OSHA has announced that it will not enforce any of the ETS standards until January 10, 2022, and will not issue citations for non-compliance with the ETS testing requirements until February 9, 2022, so long as employers are exercising “reasonable, good faith efforts to come into compliance with the standard.”

What Now? An emergency appeal of the Sixth Circuit ruling has already been filed with the United States Supreme Court, which will ultimately decide if the ETS will stand. Nevertheless, employers must prepare now for compliance with the ETS mandate because if sanctioned by the Supreme Court, employers will face a very narrow timeframe to come into compliance with the ETS requirements. Many employers have opted to adopt the ETS mandates despite the ongoing legal challenges because OSHA standards only establish minimum workplace standards and employers are free to implement more stringent requirements.