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Court reinstates OSHA's temporary standard for emergency vaccination and testing



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On Friday, December 17, 2021, the 6th Circuit reinstated the Federal Court of Appeals Occupational Safety and Health Administrations (OSHA) Federal Temporary Emergency Standard (ETS) for covid-1

9. The decision of the 6th District Court annuls the stay ordered in November by the 5th district and allows OSHA to resume ETS implementation and enforcement throughout the country.

The ETS establishes a mandatory vaccination policy requirement for private employers with 100 or more employees. Opponents of the ETS have already filed an appeal to the Supreme Court of the United States, challenging the decision of the 6th Circuit.

OSHA Response and Guidance

OSHA has published the following reintroduction guidance:

To take into account any uncertainty created by the stay, OSHA exercises compliance with respect to ETS compliance dates. To give employers sufficient time to meet the requirements, OSHA will not issue non-compliance references to any requirements in the ETS before January 10 and will not issue non-compliance references of the standard test requirements before February 9, as long as an employer trains reasonable efforts in good faith to conform to the standard. OSHA will work closely with the regulated community to provide compliance assistance.

Impact on employers

The decision of the 6th Circle indicates that ETS can survive its legal challenges. Employers covered by the ETS should monitor legal developments closely. They should also consider what steps they would need to take to be considered as having made reasonable efforts in good faith to comply with whether the Supreme Court upholds the ETS.

For more information, see the recording of our webinar. from December 1, which described a high-level overview of ETS and related requirements, as well as practical steps to help you prepare to follow if ETS would become a reality. Our team will continue to provide updates as needed.


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