In the ongoing legal battle over the Occupational Safety and Health Administration’s emergency temporary standard on COVID-19 Vaccination and Testing (the “ETS”), a federal appeals court has given OSHA authority—for now—to move forward with enforcement. The core of the ETS is the requirement that employers with more than 100 employees must implement and enforce a policy that mandates that employees be fully vaccinated against COVID-19 by January 4, 2022 or to submit to weekly COVID-19 testing and wear a mask.
However, in light of the numerous legal challenges and the uncertainties caused by the conflicting decisions in federal court, OSHA has stated that it will exercise its “enforcement discretion” to give employers some additional time to comply with deadlines published in the original ETS. OSHA states that it will not issue any citations for non-compliance with ETS requirements before January 10, 2022, and will not issue citations before February 9, 2022 for failing to enforce the testing requirements—so long as employers are using good faith efforts to comply.
The challengers to the ETS have filed a petition in the United States Supreme Court to block the ETS. However, unless the United States Supreme Court intervenes, the ETS is in effect and covered employers must be a position to comply with the new January 10 and February 9 enforcement deadlines.
The “legal” answer is that as of today, yes. But stay tuned.
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