UPDATE: OSHA Test or Vaccine Rule is Back On...For Now

On Friday, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit lifted the stay on implementation and enforcement of the OSHA Emergency Temporary Standard (ETS) that was previously issued by the Court of Appeals for the Fifth Circuit.  As we reported here, the ETS requires all employers with 100 or more employees to ensure that their employees are either fully vaccinated (2 weeks after the second dose of the Pfizer or Moderna vaccine or after one dose of the Johnson & Johnson vaccine) or to test weekly for COVID-19 by January 10, 2022 (this is an extension from the original directive which set the deadline for January 4, 2022).  The ETS does not apply to any employees who work at home, do not report to a workplace where other workers or customers are present, or work exclusively outdoors.

Many companies, industry groups, and 27 states have filed emergency motions with the U.S. Supreme Court to reinstitute the stay on the implementation of the ETS.  If the Supreme Court accepts the case, it could issue an emergency stay pending further proceedings.  It also could take no action at all, whereby the ETS would go into effect, as scheduled, on January 10, 2022.  OSHA has stated that it will not issue citations for non-compliance before February 9, 2022.  As such, absent some emergency action by the Supreme Court, employers should plan and prepare for the implementation of the ETS on January 10, 2022.