Federal Appeals Court lifts stay on OSHA ETS vaccination/testing requirement


On Friday, Dec. 17, 2021, the U.S. Court of Appeals for the 6th Circuit issued an order lifting the nationwide stay of the OSHA Emergency Temporary Standard (ETS) vaccination/testing requirement. Cases around the country challenging the ETS had previously been consolidated in the 6th Circuit, and the decision applies nationwide.

This decision allows OSHA to implement and enforce the rule issued on Nov. 5, 2021. Following the decision, OSHA announced if an employer is exercising reasonable, good faith efforts to come into compliance with the standard that it will not issue citations for noncompliance with any requirements of the ETS before Jan. 10, 2022, and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, 2022. 

As a reminder, the ETS requires employers with 100 or more employees to:

  • Develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or undergo weekly COVID-19 testing and wear a face covering at the workplace.
  • Determine the vaccination status of each employee, obtain acceptable proof of vaccination from vaccinated employees, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status.
  • Support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each primary vaccination dose, and reasonable time and paid sick leave to recover from side effects experienced following each primary vaccination dose.
  • Ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer).
  • Require employees to promptly provide notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.
  • Immediately remove from the workplace any employee, regardless of vaccination status, who received a positive COVID-19 test or is diagnosed with COVID-19 by a licensed healthcare provider, and keep the employee out of the workplace until return to work criteria are met.
  • Ensure that each employee who is not fully vaccinated wears a face covering when indoors and when occupying a vehicle with another person for work purposes, except in certain limited circumstances.
  • Provide each employee with information about the requirements of the ETS and workplace policies and procedures established to implement the ETS; vaccine efficacy, safety and the benefits of being vaccinated (by providing the CDC document “Key Things to Know About COVID-19 Vaccines”); protections against retaliation and discrimination; and laws that provided for criminal penalties for knowingly supplying false statements or documentation..
  • Report work-related COVID-19 fatalities to OSHA within 8 hours of learning about them, and work-related COVID-19 in-patient hospitalizations within 24 hours of the employer learning about the hospitalization.
  • Make certain records available for examination and copying to an employee (and to anyone having written authorized consent of that employee) or an employee representative.

ETS resources: