01.13.22 UPDATE: The U.S. Supreme Court issued a stay blocking Biden administration’s vaccine and testing mandate for large employers, while allowing a separate vaccination mandate for employees of healthcare facilities that receive Medicare and Medicaid funding. Read more here.
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On December 17, 2021, the 6th Circuit Court of Appeals lifted the stay on OSHA’s COVID-19 Emergency Temporary Standard (“ETS”). This allows OSHA to enforce the ETS, including the requirement that large employers (100 or more employees) implement vaccination or weekly testing protocols.
OSHA announced that employers “exercising reasonable, good faith efforts to come into compliance…” will have until January 10, 2022 to issue compliant policies and until February 9, 2022 to be fully compliant with testing protocols.
The 6th Circuit’s decision is unlikely to be the final word on the issue, as opponents have already appealed to the Supreme Court.
Who is covered?
OSHA’s ETS generally covers private sector employers with 100 or more employees, including part-time, remote, temporary and seasonal employees.
What must employers do by January 10, 2022?
Among other requirements, employers will be required to:
- Implement and distribute a written vaccination or testing policy;
- Determine the vaccination status of all employees, including collecting proof of vaccination; and
- Require employees who are not fully vaccinated to wear masks.
The ETS mandate does not apply to employees who are fully remote (no in-person contact with other employees or customers) or those employees who work exclusively outdoors. Employees with legally recognized medical and religious exemptions may be excused from vaccination but are subject to the weekly testing and masking requirements.
What must employers do by February 9, 2022?
Employers must ensure that all non-fully vaccinated employees are tested weekly. Employers must refuse non-complaint employees access to the workplace.
Carmody’s Labor and Employment team will continue to update clients and monitor the enactment of the ETS and is available to discuss any questions regarding requirements and implementation of the ETS. More detail on the ETS can be found HERE.
This information is for educational purposes only to provide general information and a general understanding of the law. It does not constitute legal advice and does not establish any attorney-client relationship.