Rachel Felton, Attorney at Law

Rachel D. Felton


Posted on December 21, 2021

The newest development in the litigation over OSHA’s vaccination-or-test Emergency Temporary Standard (“ETS”) occurred last Friday when the Sixth Circuit Court of Appeals dissolved the stay on enforcement of the ETS.

Immediately thereafter, OSHA issued a statement setting new deadlines of January 10 and February 9, 2022 for compliance with the ETS. Specifically, OSHA stated that it will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the ETS’s testing requirements before February 9.

An emergency appeal of the Sixth Circuit’s decision to dissolve the stay has been filed with the United States Supreme Court. Nonetheless, employers should begin to prepare for the ETS to go into effect.

We recommend that employers begin to:

  1. Gather information on the vaccination status of each employee. For employees who are vaccinated, employers must collect proof of vaccination.  Vaccination information and records are confidential medical information.
  2. Determine whether your company will require vaccination or offer testing as an alternative. If vaccinations will be required, establish a process for employees to request an exemption based on a disability, sincerely held religious belief, or medical condition. If testing is provided as an alternative, determine a plan for testing (e.g., will testing be conducted on or off site, how will test results be reported and collected, and how will positive test results be handled).
  3. Draft and implement ETS-compliant written policies on vaccination, testing and masking, if applicable, reporting test results and COVID-19 diagnosis, and quarantine and return to work protocols.

More information on the ETS’s requirements can be found here. [Link to our prior post] https://www.metzlewis.com/osha-issues-covid-19-vaccination-or-test-standard-for-employers/

If you have any questions on preparing for the ETS, please contact Jim O’Connor, Rachel Felton, or any other member of our employment law team.

This post was written by Rachel Felton

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