FWW Employment Alert: Best Practices for Larger Employers Awaiting U.S. Supreme Court Ruling on Federal OSHA Emergency Temporary Standard


Under the federal Occupational Safety and Health Administration's (“OSHA”) emergency temporary standard (“ETS”), businesses with 100 or more employees must ensure employees are either fully vaccinated against COVID-19 or tested weekly and continuing to mask. Although the U.S. Court of Appeals for the Fifth Circuit had temporarily stayed the ETS, the U.S. Court of Appeals for the Sixth Circuit, which was later designated to hear consolidated appeals of the ETS, dissolved the stay on Dec. 17, 2021. Consequently, larger employers will have to comply with the ETS, unless the U.S. Supreme Court rules otherwise. Oral argument is scheduled for Jan. 7, 2022; stay tuned for additional updates.

epending on how the Supreme Court rules, employers may have a very tight deadline to comply with the ETS. The start date for enforcement of the testing requirement has been extended (from Jan. 4) to Feb. 9, 2022. However, enforcement of the other components of the ETS take effect on Jan. 10, 2022 (extended from Dec. 6, 2021), including the requirement for larger employers to determine employees’ vaccination status and develop a written policy. (OSHA has advised that, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard, it will not issue citations for noncompliance before these dates.)

For states that have their own OSHA-approved occupational safety and health programs, including Oregon and Washington, the state OSHA programs must adopt a rule that is “at least as effective” as the federal ETS. That is, these states are required to adopt the same or similar standard as the ETS by Jan. 24, 2022. Like the federal standard, the anticipated effective date of the state standard would be 30 days from adoption. Oregon and Washington OSHA programs are still evaluating whether to adopt the same requirements as the ETS or more stringent rules.

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