OSHA ETS Reinstated by Federal Appeals Court, New Enforcement Deadlines

OSHA ETS Reinstated by Federal Appeals Court, New Enforcement Deadlines

On Friday, Dec. 17, 2021, the Sixth Circuit Federal Court of Appeals reinstated the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) for COVID-19. The Sixth Circuit decision reverses the stay ordered by the Fifth Circuit in November. The Sixth Circuit’s ruling was challenged immediately by various parties directly to the U.S. Supreme Court, which agreed to hear oral arguments on Friday, January 7, 2022 in connection with the OSHA ETS as well as the CMS vaccine mandate rule. Unless the Supreme Court reissues a stay or ultimately determines the ETS to be unlawful, OSHA intends to enforce it.

Upon this decision, OSHA quickly granted employers a limited amount of time to comply with the ETS requirements, specifically until January 10, 2022 for most of the ETS requirements and until February 9, 2022 for the ETS’s testing requirements.

New OSHA ETS Compliance Deadlines:

ETS Requirement: January 10, 2022

• Establish vaccination/testing/masking policies

• Deploy training on policy and enforcement

• Provide employees with information about the ETS, workplace policies, CDC vaccine information, anti-retaliation protections and criminal penalties for providing false statements or documentation in connection with vaccines or testing

• Collect and retain vaccination status of each employee

• Create roster of vaccination status

• Ensure unvaccinated employees wear face coverings when indoors or in a vehicle with another person for work purposes

ETS Requirement: February 9, 2022

• Ensure unvaccinated employees are tested weekly or granted an exception for medical and/or religious reasons

Note that these updated enforcement deadlines, outlined above, are dependent upon employers “exercising reasonable, good faith efforts to come into compliance with the standard,” according to OSHA guidance posted on its website.

OSHA’s ETS applies to all employers with at least 100 employees, regardless of where employees are located in the U.S., unless another COVID-19 related safety rule applies to the employer (such as the CMS or federal contractor rules). If the ETS applies, then unvaccinated employees will need to mask and test unless:

1. They cannot for medical or religious reasons and have been granted an exception

2. They do not work at a workplace where other individuals are present (individuals mean coworkers and/or customers)

3. They work exclusively outdoors (they are never indoors with coworkers or customers)

Employer Actions: Employers who have continued their ETS compliance efforts since the ETS was released in early November, take note of the new deadlines of January 10, 2022 for most of the requirements and February 9, 2022 for the testing requirements. For those employers who paused their compliance efforts of the OSHA ETS last month in light of the Fifth Circuit stay, they are now encouraged to resume those efforts, including collecting employees’ vaccination status, drafting a compliant policy around vaccines, testing and/or masking, working on logistics for the testing component (if the company decides to permit employees to choose whether to become vaccinated), conducting compliance training for employees and establishing a weekly testing protocol in light of the updated enforcement deadlines. 

For a detailed look into the OSHA ETS requirements and what actions your organization may need to take, access our Client Advisory Overview here.

In other federal COVID vaccine mandate news, the Supreme Court has been asked to review another injunction on a federal vaccine mandate, this one being the Center for Medicare and Medicaid (CMS) interim final rule requiring COVID-19 vaccines for staff and others at CMS-certified providers and suppliers. This CMS vaccine mandate is temporarily blocked in twenty-five (25) states but in effect in the remaining twenty-five (25) states along with the District of Columbia. As mentioned above, the Supreme Court agreed to hear oral arguments on this CMS vaccine mandate rule on January 7, 2022. Further, the federal contractor vaccination mandate (Executive Order 14042), applicable to federal contractors and subcontractors, is currently enjoined nationwide. On December 17, 2021, the Eleventh Circuit denied the administration’s request to lift the preliminary injunction and the federal government confirmed in recently released guidance that it will not take action to enforce Executive Order 14042 in the United States or its outlying areas.

The compliance landscape around the OSHA ETS and these other federal COVID vaccine mandates is very fluid and changing rapidly. Risk Strategies will continue to work diligently to provide our clients with the most up-to-date information.