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November 5, 2021
January 26, 2022 Update: Yesterday, OSHA announced that it was withdrawing the vaccinate-or-test mandate for large employers. However, employers should expect a new – perhaps more narrowly tailored – rule in the future.
January 14, 2022 Update: Yesterday, the United States Supreme Court stayed the Occupational Safety and Health Administration’s (OSHA) vaccinate-or-test mandate for large employers, finding that OSHA is authorized to establish safety standards for the workplace, but is not authorized to set broader public health standards. The majority of the Justices believe that OSHA’s mandate exceeds its authority to regulate the workplace. In a concurring opinion, Justices Gorsuch, Thomas, and Alito concluded that state and local governments, not the federal government, could impose mandates like the one OSHA sought to impose. Justices Breyer, Sotomayor, and Kagan dissented, saying that OSHA’s mandate falls within their core mission, that the public interests weigh in favor of enforcing it, and that the Supreme Court should not second-guess the experts. Labor Secretary Marty Walsh expressed disappointment in the decision and noted that OSHA will do everything in its existing authority to hold businesses accountable for protecting workers, including under the Covid-19 National Emphasis Program and General Duty Clause.
December 20, 2021 Update: On Friday, December 17, 2021, the United States Court of Appeals for the Sixth Circuit – with which all of the lawsuits related to OSHA’s Emergency Temporary Standard were consolidated – lifted the stay that the Fifth Circuit Court of Appeals put in place last month. The decision already has been appealed to the United States Supreme Court. OSHA will not enforce any of the requirements of the ETS until January 10, 2022, and does not intend to issue citations for non-compliance until February 9, 2022, as long as employers are exercising reasonable, good faith efforts to come into compliance with the ETS.
November 15, 2021 Update: On Friday, November 12, 2021, the United States Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s Emergency Temporary Standard. As a result, OSHA has suspended activities related to the implementation and enforcement of the Standard pending future developments in the litigation, which we expect will entail the consolidation of all similar lawsuits before one appellate court and appeals to the United States Supreme Court.
November 6, 2021 Update: The United States Court of Appeals for the Fifth Circuit has stayed the mandate discussed below. However, given the deadlines associated with the mandate, we recommend that employers work toward compliance.
On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its Emergency Temporary Standard (ETS) to require employers with at least 100 employees to either mandate COVID-19 vaccination or mandate workplace mask-wearing and weekly COVID-19 testing for the unvaccinated.
The ETS requires all unvaccinated workers to begin wearing masks by December 5 and to provide a negative COVID-19 test on a weekly basis beginning January 4. The deadline for federal contractors to comply has been pushed back to January 4.
Compliance with the ETS
Not all employees of a 100+ employer are covered
Employees are NOT subject to the ETS if:
Rubin Fortunato is monitoring the lawsuits stemming from the ETS and will provide updates on our website accordingly. Please contact us if you need assistance working toward ETS compliance.