Late last night, we told you that a three-judge panel from the Sixth Circuit issued a decision “dissolving” the Fifth Circuit’s stay order preventing OSHA from enforcing its “vaccination or testing” rule for employers with 100 or more employees.
Today, OSHA posted on its website that January 10, 2022, is the new deadline for compliance with the rule. OSHA also said, however, that it will not issue citations for noncompliance until February 9, 2022. Here’s the full statement from OSHA:
OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. 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.
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA 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. OSHA will work closely with the regulated community to provide compliance assistance.
The plaintiffs in the Sixth Circuit case (the state of Ohio among others) have already petitioned the United States Supreme Court to block the rule. We expect the Supreme Court to quickly rule on the petition.
Bottom Line
As we said last night, the Sixth Circuit’s ruling will not be the final word on the OSHA ETS Rule because the appeal has already been filed with the Supreme Court. But now that OSHA has weighed in with the deadline, if the Supreme Court denies the petition, employers with over 100 employees must begin to develop compliant policies which should be implemented by no later than January 10, 2022, even if employers are not able to implement the testing requirements by that date. If an employer has implemented a policy by January 10 and is able to demonstrate that they are “exercising reasonable, good faith efforts to come into compliance” with the testing requirements by Wednesday, February 9, 2022, OSHA will not issue citations for non-compliance.