The 6th Circuit Court of Appeals has lifted a previous injunction on the OSHA Vaccination and Testing Emergency Temporary Standard (ETS). This means OSHA can now once again implement its ETS and the included vaccination and testing policies.

OSHA’s COVID-19 ETS applies to employers with 100 or more employees and requires that employers either (1) develop, implement, and enforce a mandatory COVID-19 vaccination policy or, (2) establish, implement, and enforce a policy allowing employees to either get vaccinated or undergo weekly testing and wear a face covering in the workplace. All requirements under the ETS (except for the testing requirement) must have been complied with by December 5, 2021 (a date which has already passed), and employers must comply with the testing requirement by January 4, 2022 – a date that is quickly approaching.

The U.S. Department of Labor has stated that OSHA will exercise enforcement discretion with respect to compliance dates, further stating that OSHA will not issue citations for noncompliance with any of the requirements until January 10th, and it will not issue citations for noncompliance with the testing requirements until February 9th so long as businesses are making “reasonable, good faith efforts to come into compliance with the standard.”

Minnesota Occupational Health and Safety Administration (MNOSHA) has not yet adopted the ETS, but given prior indications we anticipate that they will do so now that the stay has been lifted. Employers who are covered by the ETS should work diligently and promptly to be prepared to be in compliance in the new year, including making plans for ascertaining vaccination status, implementing recordkeeping practices, and preparing for testing procedures.  

There have already been multiple petitions filed to the United States Supreme Court requesting that the Supreme Court issue an opinion on the matter, but it has not yet been announced whether the high court will take up the case. As always, we will continue to monitor developments with this ETS and will provide updates when available. For more information about the ETS and its requirements for employers, click here. If you have questions about the ETS and/or how it applies to your business, contact one of the employment law attorneys at Blethen Berens – Julia Ketcham Corbett, Beth Serrill, or Alyssa Nelson.

More guidance has been provided since this article regarding the ETS. Please see our news section for the latest update from Blethen Berens.