Unless you have been in hibernation, you likely recall that OSHA issued an Emergency Temporary Standard (ETS) in November that included a vaccination-or-test requirement for all private employers with 100 or more employees. And, shortly thereafter, a nationwide stay was issued which prevented the ETS from taking effect until further notice.

In somewhat of a surprise decision late last week, the Sixth Circuit (before which all challenges to the ETS were consolidated) overturned the stay, allowing the ETS to move forward.

OSHA posted on its website that compliance with the majority of the ETS’s requirements is now required by January 10, 2022. Compliance with the ETS’s weekly testing requirements for those employees who are not fully vaccinated is required by February 9, 2022. Both of these deadlines specifically apply only as long as an employer is exercising reasonable, good faith efforts to come into compliance. Meaning, in other words, that OSHA could (at least in theory) issue citations today for those employers who are not making good faith efforts to comply.

So, what do employers need to do to demonstrate reasonable good faith efforts to comply with the ETS between now and January 10? Doing nothing at all won’t cut it. At a minimum, employers should determine if they are covered by the ETS – do you have 100+ total employees?

If so, internally you need to decide whether you want to mandate vaccines for employees or take the vaccine-or-test option. Regardless of which option you choose, you’ll need to start the process of developing the written policy and procedures for your business and its employees. (Remember that OSHA’s website has guidance and resources for employers to assist in implementation, including written policy templates for either option.) And if you choose the testing option, you will need to look into the mechanics of how to accomplish that.

Employers will also want to lay the groundwork to be able to comply with the ETS’s other requirements – including gathering information about employees’ vaccination status and preparing a vaccination roster (which may help you decide which policy/option you want to implement), developing required training programs/personnel, and maintaining other recordkeeping and reporting obligations. Our previous ELR article goes into all of the ETS’s requirements in more detail.

That is what you should do – take at least some initial action to demonstrate your good faith compliance with the ETS – for now.

But last week’s ruling is not the final resolution on the ETS – it deals only with the issue of whether the ETS can temporarily take effect while the court challenges to it are working through the merits. And last week’s decision has already been challenged directly to the Supreme Court. It is anyone’s guess how the Supreme Court will respond and when – it could reinstate the stay or they could choose to leave the ETS in place as scheduled. But regardless of their decision in the near term, the underlying litigation over the merits of the ETS (in the Sixth Circuit and beyond) will continue well into 2022. Stay tuned.

By Rebecca D. Bullard, rbullard@dsda.com