On the evening of Friday, December 17, 2021, the United States Court of Appeals for the Sixth Circuit issued a ruling dissolving the judicial stay that had, since November, kept the Occupational Safety and Health Administration (“OSHA”) from enforcing its COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”), which applies to employers with 100 or more employees. Now that the ETS is once again being enforced, covered employers will face tight deadlines in the coming New Year.
As outlined in our prior Client Alert on November 11, 2021, the ETS mandates that covered employers implement a written vaccination policy and keep track of their employees’ vaccination status. There are two options for compliance. Employers can implement a mandatory vaccine policy, with limited exemptions for medical or religious accommodations. Alternatively, employers can forgo a mandatory vaccine policy and require employees who choose to remain unvaccinated to undergo weekly testing and wear face coverings indoors. Additionally, the ETS contains requirements for paid leave, recordkeeping, safety measures, and reporting.
Originally, covered employers had until December 5, 2021 to comply with most provisions of the ETS, with the testing requirements going into effect on January 4, 2022. Those deadlines have now been pushed back. OSHA announced that it will not issue citations for noncompliance with the requirements of the ETS before January 10 and will not issue citations for noncompliance with the testing requirements before February 9, provided the employer is making reasonable good-faith efforts to comply.
The legal challenge to the ETS has made its way to the Supreme Court, where challengers filed an emergency appeal over the weekend. Emergency appeals, such as the request for a stay of a ruling by a Circuit Court, go directly to a justice assigned to that Circuit — in this case, to Justice Brett Kavanaugh. This case is moving quickly, and we will update you as we continue to monitor developments.
As a reminder, employers in New York City, regardless of size, are separately obligated under the City’s Workplace Vaccination Requirement to require vaccination for all employees who report to the workplace. Further guidance on the City’s mandate can be found here.
Meredith Cavallaro Head of the Firm’s Employment Practice mc@pwlawyers.com http://www.pwlawyers.com/
About Paduano & Weintraub LLP
Paduano & Weintraub's Employment Group represents employers in all aspects of employment litigation and counseling. For companies of various sizes, ranging from large public companies to small family-owned businesses, we defend employers nationally, and across various industries, in state and federal actions and arbitrations brought by employees alleging discrimination, harassment and retaliation. We defend employers in single plaintiff and collective and class actions throughout the country alleging violations of the Fair Labor Standards Act and its state and local counterparts. We regularly represent employers in matters regarding restrictive covenants. We counsel clients in risk management by creating proactive solutions to workplace issues. We create and implement compliant and practical policies and best practices to help clients build a workplace infrastructure that balances business needs and legal compliance while mitigating short- and long-term risk. In that regard, we provide effective management-level training seminars and conduct employee harassment training and intervention. Our team responds to and manages the complex issues that arise from workplace crises, including high-profile sexual harassment complaints.
