Late on Friday, December 17, 2021, the Sixth Circuit Court of Appeals, in a 2-1 decision, vacated the Fifth Circuit’s stay on OSHA’s Emergency Temporary Standard (“ETS”). The ETS mandates private employers with at least 100 employees to be fully vaccinated or submit to a weekly COVID test and wear face masks. Given this swift reversal, OSHA updated its compliance dates to provide employers additional planning and coordination: OSHA will not issue citations for noncompliance with ETS requirements before January 10, 2022, and will not issue citations for noncompliance with the ETS testing requirements before February 9, 2022. OSHA will postpone citations so long as an employer is exercising “reasonable, good faith efforts to come into compliance with the standard.”
By January 10th, employers with 100+ employees must comply with everything but the testing requirement. Thus, by January 10th, affected employers should:
Have an ETS-compliant policy in place. Note that the ETS does contain a template policy that has been deemed compliant by OSHA, found here;
Collect vaccination data of its employees (including proof of vaccination and a status roster of vaccinated and unvaccinated employees);
Mandate masks for the unvaccinated; and
Remove COVID-positive employees from the workplace, along with employees known to have been exposed to COVID-positive individuals.
By February 9th, affected employers are subject to citations if they have...
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