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DGS Legal Alert: Dissolution of the Stay of the Vaccination & Testing Emergency Temporary Standard

December 20, 2021

On December 17, the Fifth Circuit’s stay of the Occupational Safety and Health Administration (OSHA) COVID-19 rule for employers with 100 or more employees was dissolved. While it is likely there will be petitions for the Sixth Circuit to rehear the case en banc, and there have been appeals filed in the U.S. Supreme Court, there is no stay currently in place.

OSHA had previously announced that it would “stand down” during the Fifth Circuit’s stay. The rule’s December 5th deadline to put a written vaccination or “mask and test” policy in place has already passed. The December 17th announcement read:

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the Emergency Temporary Standard (ETS). To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

OSHA is currently intending to enforce this standard commencing on January 10, 2022, barring another stay. In order to be in compliance with the standard on January 10th, some work toward developing a written policy will be needed to move forward.

Please contact Laura Riese or a DGS Partner if you have any questions or if we can assist you with any legal needs.