Employment Law Alert: Federal OSHA Vaccination and Testing Emergency Temporary Standard Update

On December 22, 2021, the U.S. Supreme Court announced that it will hear oral arguments on January 7 as to the enforceability of the federal Occupational Safety and Health Administration (OSHA) Vaccination and Testing Emergency Temporary Standard (“ETS”). We previously reported on the ETS requirements here.

In November, the U.S. Court of Appeals for the Fifth Circuit issued a stay of the ETS, temporarily halting enforcement of the mandate. On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the temporary stay issued by the Fifth Circuit.

Following the Sixth Circuit’s decision, OSHA issued a news release stating that it “will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” 

The Sixth Circuit’s ruling reinstating the ETS will remain in force pending a decision by the Supreme Court. As such, employers covered by the ETS should be prepared to comply with the ETS requirements and stay tuned as to further legal developments