On December 17, 2021, the Sixth Circuit Court of Appeals granted the Biden administration’s Motion to Dissolve the stay on the Occupational Safety and Health Administration’s (Fed/OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standards (ETS), and lifted the nationwide stay issued by the Fifth Circuit Court of Appeals in November.  

Shortly after the injunction was imposed by the Fifth Circuit, numerous federal court challenges to the ETS were consolidated and assigned to the Sixth Circuit Court of Appeals. 

Almost immediately after the dissolution order, Fed/OSHA posted a news release stating that compliance should begin January 10, 2022:  “[t]o provide employers with sufficient time to come into compliance, OSHA will not issue citations for non-compliance 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.”

All employers under Fed/OSHA’s jurisdiction with 100 or more employees in the United States are covered.  Part-time employees must be included in the count, but not independent contractors.  If a business utilizes a staffing agency for its workforce needs, the staffing agency’s employees will not count toward the business’ 100 employee threshold.  However, if that staffing agency employs 100 or more employees, the staffing agency is responsible for VAX ETS compliance as to the staffing agency’s employees.  For a summary of the ETS mandate, see CDF Labor Law’s November 8, 2021 blog.

Emergency petitions have been filed with the Supreme Court of the United States to stay the ETS.