As we reported previously, the Sixth Circuit Court of Appeals lifted the stay of enforcement of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard, which requires employers with 100 or more U.S. employees to ensure by January 4, 2022 that their workforces are fully vaccinated or ensure they test negative at least weekly for COVID-19 as a condition of reporting to the workplace or working with customers or coworkers. The decision left many U.S. employers scrambling to ensure compliance just as they head into their holiday vacations. In a welcome announcement early on December 18, 2021, the Department of Labor announced that, in light of the timing of the decision, it would not issue citations for noncompliance with any requirements of the ETS before January 10, 2022, and will not issue citations for noncompliance with the ETS’s testing requirements before February 9, 2022, as long as an employer is exercising reasonable, good faith efforts to come into compliance with the ETS. Therefore, although employers covered by the OSHA ETS are urged to do as much as possible to gather information regarding their workforces’ vaccination rates, comply with recordkeeping requirements, and distribute OSHA-compliant policies by the January 4 deadline, evidence of good faith attempts to comply with the ETS will grant employers a brief reprieve until January 10, 2022 to come into full compliance. The added time also allows for the possibility that one of the many applications filed with the Supreme Court of the United States to grant an emergency stay of the Sixth Circuit’s decision may be granted.
