On Nov. 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a federal Emergency Temporary Standard (ETS) to address the grave danger of COVID-19 infection in the workplace. Affected employers will be required to comply with most provisions of the ETS by Dec. 6, 2021, and with its testing requirements by Jan. 4, 2022. Affected employers include private employers with 100 or more employees (firm or company-wide count). State plans will have 30 days to adopt the federal ETS or implement their own vaccination standard.
Several groups opposing the rule filed actions in various federal courts in an effort to block the rule. On November 6, 2021 the conservative Fifth Circuit Court of Appeals was the first to act by issuing a temporary “stay” that blocked the ETS until it could more closely examine the legality of the rule. The same court issued an extended stay on November 12, 2021. On November 16, 2021 the Sixth Circuit Court of Appeals was selected by lottery to assess the consolidated challenge against the executive order. This court is also very conservative. Either way, the U. S. Supreme Court will likely have the final say.
What Should Employers Do?
The GBS Compliance Team created this checklist to help you determine steps you can take now to comply with the OSHA ETS. We recommend becoming familiar with the requirements of the ETS and using this checklist to prepare to implement those requirements if the stay is lifted and the emergency rule is revived. Given the details in the ETS, failure to begin preparing could be a risky proposition. If the ETS is upheld and cleared for enforcement, and the current compliance deadlines in December and January do not change, you would have little time to act. Even if the deadlines were extended, you may not be given significantly more time to comply.
