Circuit Court Lifts Stay of OHSA's "Vaccinate or Test" Mandate

As we previously posted, in November 2021, the Occupational Safety and Health Administration (OSHA) issued Emergency Temporary Standards (ETS), requiring private employers of 100 or more employees to implement “vaccinate or test” requirements for workers. The ETS had been stayed by the Fifth Circuit Court of Appeals.

On December 17, 2021, the Sixth Circuit Court of Appeals (where the various challenges to the ETS had been consolidated) lifted the stay in a 2 to 1 decision. Following the lift of the stay, OSHA announced that employers will have until January 10, 2022, to develop policies required by the ETS and until February 9, 2022, to begin testing programs.

To the extent that businesses subject the ETS have not finalized their ETS policies, they should do so immediately. Businesses should also continue to monitor the status of the challenges to the ETS as a group of approximately 26 trade groups have filed an emergency application with the United States Supreme Court seeking to have the stay reinstated. The Court has given the Biden Administration until 4 p.m. on December 30, 2021 to respond to the emergency application. Thus, the stay may (or may not) be reinstated. Regardless, given the short time frame remaining for businesses to comply, businesses should proceed for the time being as if the ETS will go into effect.

If you have questions about your business’s COVID-19 obligations, or other employment practices, please contact us at (201) 345-5412 or through our online scheduling system to set up a complimentary consultation.

Information contained in this blog is provided for informational purposes and does not constitute legal advice or opinion. You should consult with an attorney regarding the specifics of your matter or legal issue.