December 21, 2021

On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued its Covid-19 Vaccination and Testing Emergency Temporary Standard (ETS) that compels private employers with 100 or more employees to implement mandatory COVID-19 vaccination policies or require unvaccinated employees to undergo regular testing and wear a face mask at work. The next day, the U.S. Fifth Circuit Court of Appeals issued a stay halting the implementation of the ETS pending judicial review, and it renewed that decision on November 12. The challenges to the ETS, which were filed in federal courts across the country, were all consolidated for review in the Sixth Circuit. On December 17, the Sixth Circuit dissolved the Fifth Circuit’s stay, clearing the way for the ETS to go into effect and giving OSHA the authority to proceed with enforcement.  In the 2-1 ruling, the Court concluded that the ETS was not only within OSHA’s statutory authority to address a “grave danger,” but was also necessary to address it.

Following the Sixth Circuit’s ruling, OSHA issued a news release regarding enforcement of the ETS.  To allow employers sufficient time to comply, OSHA will not issue citations for noncompliance for any of the requirements of the ETS before January 10, 2022, and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022.  As to the specific requirements of the ETS and for which employers are affected, please see our prior client alert issued on November 4, 2021, entitled OSHA Issues Emergency Temporary Standard for Covid-19 Vaccination.

Opponents of the ETS are now seeking an emergency stay from the United States Supreme Court.  Therefore, employers should prepare to meet the enforcement deadlines set forth by OSHA and should also continue to monitor any ruling from the Supreme Court as to the legality of the ETS.  Please contact Walter | Haverfield’s Labor and Employment attorneys for questions as to the implementation of written policies, ETS requirements for testing and face coverings, and OSHA enforcement deadlines.

Jennifer Whitt is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at jwhitt@walterhav.com or at 216.658.6249.

Shannon Byrne is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at sbyrne@walterhav.com or at 216.928.2909.

Russell T. Rendall is senior counsel at Walter | Haverfield and focuses his practice on labor and employment law. He can be reached at rrendall@walterhav.com or at 216.658.6237.