UPDATE: OSHA’s Emergency Temporary Standards Requiring Employees to Vaccinate or Test Are No Longer Stayed, But Compliance Deadlines Are Extended

Employment Law  

December 21, 2021

On November 05, 2021, the Federal Occupational Safety and Health Administration (“OSHA”) issued new Emergency Temporary Standards (“ETS”). The ETS direct employers of 100 or more employees to require their employees to vaccinate themselves against COVID-19 or test themselves weekly for the disease. The ETS also include provisions regarding masking, social distancing, and medical record retention.

A week after they were issued, the Fifth Circuit Court of Appeals temporarily stayed implementation and enforcement of the OSHA ETS. The case was then transferred to the Sixth Circuit Court of Appeals, which, on December 17, 2021, dissolved the Fifth Circuit’s stay. This action by the Sixth Circuit means that OSHA is no longer prevented from implementing and enforcing the ETS.

The ETS were originally set to take effect on December 5, 2021, with the testing and vaccination requirements to take effect on January 4, 2022. However, in light of the uncertainty created by the stay and its subsequent dissolution, OSHA has confirmed that it will not enforce any provision of the ETS before January 10, 2022, and will not enforce the COVID testing or vaccination requirements before February 09, 2022, so long as an employer is acting reasonably and in good faith to come into compliance with the ETS.

Since the dissolution of the stay, at least twenty-six trade groups have filed an emergency application for an immediate stay of the OSHA ETS in the United States Supreme Court. Justice Brett Kavanaugh is the Circuit Justice for the Sixth Circuit, and will review that request.


If you have any questions about the scope or applicability of any COVID-19 regulation, we encourage you to contact a Downey Brand attorney.