Overview

We are currently monitoring the OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) that may be required for businesses with over 100 employees. On November 12, the U.S. Court of Appeals for the 5th Circuit granted a motion to stay the ETS.  This stay ordered OSHA to “take no steps to implement or enforce the mandate until further court order.” However, on December 17, 2021, the 6th Circuit reinstated ETS.

As a result, OSHA announced that it will not issue citations for noncompliance with any requirements of the ETS before January 10, and it will not issue citations for noncompliance with the ETS testing requirements before February 9, as long as the employer is exercising reasonable, good faith efforts to come into compliance.

The 6th Circuit’s decision enhances the possibility that the ETS may prevail in its legal challenges. IOA recommends that its clients begin to consider what measures they need to have in place prior to the January and February deadlines. IOA will continue to monitor major developments and provide updates as this moves through the courts. Clients should monitor state and local requirements as well.

We encourage you and your team to follow the action steps below:

• Monitor your state’s requirements regarding COVID-19 vaccinations to ensure you are following the best and required safe practices.
• Familiarize your team on the ETS requirements.
• Ensure you are doing your due diligence to create a safe environment for you and your team.

Employers with 100 or more employees must meet the following requirements:

• Develop, implement, and enforce a mandatory COVID-19 vaccination policy.
• Track and record the vaccination status of each employee.
• Track and record weekly testing and enforcement of masks for employees who elect not be vaccinated.
• Allow employees up to four hours of paid time to receive each primary vaccination dose.
• Allow reasonable time off and paid sick leave in the event the employee becomes ill from the vaccine.
• Make certain that records are available for examination.

Resources