On Dec. 17, the 6th Circuit Court of Appeals lifted the 5th Circuit’s stay of the U.S. Department of Labor’s Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard, which applies to employers with 100 or more employees.

ABC filed an emergency appeal with the Supreme Court on Dec. 20, one of several filed by other groups. Justice Brett Kavanaugh will make the initial decision whether to stay the 6th Circuit’s ruling (restoring the stay) pending further review.

OSHA has announced a delayed restart of the ETS enforcement until Jan. 10, and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”

On Dec. 21, Justice Kavanaugh announced he will give OSHA until Dec. 30 to respond to all the emergency appeals regarding the ETS—cutting it very close for employers. On Dec. 22, the Supreme Court agreed to hold oral argument on the OSHA ETS on Jan. 7.

Because the stay has been lifted, it is recommended that covered employers do the following:

  • Continue to monitor legal developments in Newsline and the Beltway Blueprint.
  • Plan for the possibility of a COVID-19 vaccination and testing mandate.
  • Review your vaccination and testing policies. If you currently don’t have policies, consider adopting them. Policy templates are available on the OSHA Vaccination and Testing ETS website.
  • Collect employees’ vaccination status and prepare to comply with OSHA’s ETS recordkeeping requirements.
  • See OSHA ETS resources, which include fact sheets and FAQs.
  • Watch OSHA’s December 2021 webinar (slides) on the ETS.
  • Prepare for logistical challenges of testing.
  • Encourage employees to get vaccinated.
  • See ABC’s COVID-19 vaccination toolkit.
  • Follow all safety protocols as required by court-approved federal, state and local governments.

With the revised Jan. 10 and Feb. 9 deadlines in view, contractors may want to undertake more concrete compliance actions. Each company’s circumstances may vary.