A three-judge panel of the United States Court of Appeals for the Sixth Circuit has dissolved the stay on the Emergency Temporary Standard (“ETS”) applicable to employers with 100 or more employees issued by the Occupational Safety and Health Administration (“OSHA”).

As we previously reported, in November 2021, OSHA issued the ETS to minimize the risk of COVID-19 transmission in the workplace. The next day, on November 6, 2021, the Fifth Circuit Court of Appeals stayed the ETS pending judicial review. Multiple legal challenges to the ETS were then filed in several circuits and the Sixth Circuit was chosen in a lottery to hear all of petitions. 

On December 17, 2021, the Sixth Circuit issued an order dissolving the stay. OSHA has announced that it will not issue citations for noncompliance with the ETS requirements before January 10, 2022, with the exception of the standard’s testing requirements, which will not be enforced until February 9, 2022, so long as the employer is exercising reasonable, good faith efforts to come into compliance with the standard. 

Now that the stay is lifted and the ETS is in effect, employers must

• Establish a vaccination policy that includes requirements for:
  • Employees to report positive COVID-19 tests; positive COVID-19 employees to be removed from the workplace; and ensuring unvaccinated and not fully vaccinated employees wear face coverings when indoors or when occupying a vehicle with another person.
• Provide employees with information about:
  • The ETS; workplace policies and procedures; vaccination efficacy; safety and benefits; protections against retaliation; and laws providing for criminal penalties for supplying false documentation;
     
• Determine the vaccination status of each employee and required unvaccinated employees to wear face coverings;
   
• Provide paid leave for employees to get vaccinated; and
   
• Establish a reporting policy and recordkeeping policy for COVID-19 related records.

Employers should implement these policies and their workplace safety plans as soon as possible. We will continue to monitor and report on further developments regarding the ETS and will keep you updated as more information becomes available.