The U.S. Supreme Court has scheduled expedited arguments on a consolidated challenge to all vaccine-related mandates under review, including the Sixth Circuit Court of Appeal’s decision to lift the stay on the Occupational Safety and Health Administration’s ("OSHA") Vaccine Emergency Temporary Standard ("ETS"). This Vaccine ETS mandates that all employers with 100 or more employees require covered employees to be vaccinated or to wear personal protective equipment and undergo weekly testing as of February 9, 2022. The Supreme Court will also hear oral arguments on a federal district court stay of the Centers for Medicare and Medicaid Services Vaccine mandate, a similar mandate applying to healthcare providers. OSHA has until December 30, 2021 to respond to various emergency motions to stay enforcement of the ETS, which have been filed by multiple parties, including 27 states.
These arguments are now scheduled for January 7, 2022, three days before OSHA will begin to enforce noncompliance with the requirement that employers document the vaccine status of their employees. Meanwhile, the ETS remains in effect, and covered employers should take reasonable steps to comply by January 10, 2022. States with their own OSHA agency, including California, should look to their state agency for guidance on whether the state will adopt the OSHA ETS, or to implement an ETS that is at least as protective as the federal standard.
As there is no guidance indicating that any of the deadlines will be further extended despite the pending review by the Supreme Court, employers should comply with the federal ETS now and can modify their policies if their own state agency publishes an ETS with different requirements. OSHA published a sample ETS policy, however, employers should be aware it does not cover all requirements of the standard and employers are encouraged to reach out to their counsel to ensure that their written policy is compliant with the notification obligations of the ETS.
You can find more information on the Vaccine or Test ETS here. Gordon & Rees will continue to monitor and provide additional updates as more information on this ever-changing matter is available.
New associate Kelly Butler co-authored this alert.