By Attorney Miriam Van Heukelem
On December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit lifted the stay issued by the 5th Circuit last month that temporarily delayed the implementation of OSHA’s Emergency Temporary Standard (“ETS”) that requires employers with over 100 employees to adopt, implement, and enforce a written mandatory vaccine policy for the workplace. Additional details about the ETS can be found in our November 11 Client Alert, "OSHA Issues Emergency Temporary Standard on Vaccination and Testing". In light of the 6th Circuit’s ruling, employers must again begin planning for implementation of the ETS in the near future.
With respect to a new timeline for compliance with the ETS, OSHA has advised:
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.
The 6th Circuit’s ruling will likely be appealed and may result in another stay while the case is taken up by the Supreme Court. We will continue to keep you informed on developments in this case.
For our K-12 clients: Please note that this case is separate from the Arc of Iowa Preliminary Injunction against Iowa Code section 280.31, which is currently on appeal before the Eighth Circuit. Section 280.31 generally prohibits schools from adopting, implementing, or enforcing mask rules for students, employees, or visitors. However, section 280.31 allows schools to implement mask rules where otherwise “required by law,” and OSHA has indicated that the ETS is intended to supersede any state laws regarding vaccines, testing, or masks. Thus, whatever the outcome of the Arc of Iowa Preliminary Injunction appeal, schools must be prepared to implement the ETS as noted above.
If you have any questions, don’t hesitate to contact a member of the Ahlers & Cooney Employment Law team.
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Van Heukelem, Miriam