Court Reimposes Vaccine and Testing Mandate for Larger Employers

December 21, 2021 Court Reimposes Vaccine and Testing Mandate for Larger Employers

On December 17, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard (ETS). The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) can now resume implementing this workplace health standard. The ETS establishes requirements to protect employees of larger employers (100 or more employees) from the risk of contracting COVID-19 in the workplace. The issue will ultimately be decided by the U.S. Supreme Court in the near future.

 To account for the current uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the ETS compliance dates. Specifically, 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.

Numerous applications for a stay of the ETS were filed with the U.S. Supreme Court. ISSA will continue to closely monitor this fluid situation, including subsequent, related court rulings in the coming days and/or weeks, and keep its members apprised, accordingly. In the meantime, the following links provide further information on the ETS:

ISSA also continues to seek comments from its members regarding the potential impact of the ETS on the cleaning industry to possibly share with federal regulators. Please provide relevant comments to ISSA Director of Government Affairs John Nothdurft by January 3. For more information about ISSA advocacy, including this ETS, please contact John Nothdurft.