Enforcement of OSHA’s COVID-19 ETS to begin Jan. 10

Cincinnati — The 6th U.S. Circuit Court of Appeals upheld OSHA’s emergency temporary standard on COVID-19 vaccination, testing and masking, with a 2-1 decision issued Dec. 17.

The decision ends a stay issued by the New Orleans-based 5th Circuit on Nov. 12 and means the implementation and enforcement of the ETS can move forward.

The 6th Circuit was chosen to consider a consolidated challenge to the ETS via a lottery, conducted by the Judicial Panel on Multidistrict Litigation on Nov. 16 after 27 petitions were filed for review in 12 appeals courts.

According to a Dec. 18 press release, OSHA won’t issue citations “for noncompliance with any requirements of the ETS” before Jan. 10 and won’t issue citations for testing requirements before Feb. 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” Additionally, the agency will provide compliance assistance to covered employers.

“OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace,” the release states.

Hours after the decision was handed down, 27 states and “a long list of companies and organizations” filed an appeal with the Supreme Court, according to a press release from South Carolina Attorney General Alan Wilson’s office.

“This case does not present the question whether vaccines or vaccine mandates are wise or desirable,” the release states. “Instead, it presents the narrow questions whether OSHA had authority to issue the mandate and whether it lawfully exercised whatever authority it had. After all, ‘our system does not permit agencies to act unlawfully,’ even during a pandemic and ‘even in pursuit of desirable ends.’”

OSHA published the ETS in the Nov. 5 Federal Register, giving employers with 100-plus employees 30 days to develop, implement and enforce a mandatory COVID-19 vaccination policy – or provide a policy that gives workers the choice to get vaccinated or undergo weekly COVID-19 testing.

Covered employees had an initial deadline of Jan. 4 to become fully vaccinated, or begin weekly testing and wear a face covering while indoors or in a vehicle “with another person for work purposes.”

The ETS directs employers to provide paid time off to receive a vaccine – up to four hours for each dose – and paid leave for any side effects from vaccinations.

According to an OSHA fact sheet, the ETS doesn’t apply to employees who work from home permanently, who work “exclusively outdoors” or who report to a workplace where other individuals aren’t present.

In November, the agency extended until Jan. 19 the comment period for the rulemaking to allow stakeholders additional time to review the ETS as well as collect information and data necessary for comment. The initial comment period was slated to end Dec. 6.