On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued its Emergency Temporary Standard (ETS), requiring private employers having at least 100 employees companywide (at any given time) to adopt written policies and procedures either mandating vaccination against COVID-19 or requiring employees to choose between vaccination or undergo weekly testing while wearing a face-covering at work.
Under the ETS, employees must be fully vaccinated or undergo weekly testing beginning January 4, 2022. All other requirements, summarized below, including an indoor mask mandate for unvaccinated workers, were to become effective December 5, 2021.
Almost immediately, private employers, labor unions, state governments, and citizens across the United States mounted legal challenges to the ETS. On November 12, 2021, the United States Court of Appeals for the Fifth Circuit, following an expedited review of the ETS, issued a written opinion staying the requirements imposed by the ETS and barring OSHA from enforcing them.
On December 17, 2021, the Sixth Circuit Court of Appeals, which “won” the obligation to conduct a consolidated review of the many legal challenges to the ETS as well as the Fifth Circuit’s November 12th decision, dissolved the stay entered by the Fifth Circuit and reinstated the ETS. Ultimately, the United States Supreme Court is expected to determine whether and when the ETS will take effect.
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