Alert! Stay Of OSHA’s Vaccine Mandate For Larger Employers Lifted

Volume: 20 | Issue: 77
December 20, 2021

This past weekend has brought an astonishing turn of events for the Vaccination and Testing Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) requiring larger employers to adopt vaccination programs.

Late Friday, December 17, a three-judge panel of the Sixth Circuit Court of Appeals lifted the stay of the ETS, in a 2-1 decision. The Court has not yet ruled on the legality of the ETS – only the stay. Several parties immediately appealed the stay decision to the U.S. Supreme Court, asking for emergency consideration. Those petitions can be decided upon by Justice Kavanaugh who is assigned to consider such matters from the Sixth Circuit Court.

Despite the continued uncertainty surrounding the ETS and the lack of any final decision as to its legality, OSHA quickly announced that it is moving forward with administration and enforcement of the ETS. OSHA has given covered employers only until January 10 to come into compliance with most of the ETS’ requirements. Employers have additional time, until February 9, to satisfy the ETS’ testing requirements, provided they are exercising “reasonable, good faith efforts to come into compliance with the standard.”

OSHA’s decision to move forward with enforcement of the ETS before a final ruling as to its legality is extremely premature as it gives covered employers little choice but to begin implementing a standard which may still be declared unlawful. Fortunately for Nevada employers, Nevada OSHA has still not announced whether it will implement the ETS or adopt its own standard. As we previously discussed, Nevada OSHA had 30 days from the ETS’ publication to either amend its standards to be identical or at least as effective as the new standard or adopt the federal standard; it also had 15 days to notify OSHA of its decision. But it is not clear whether the stay changed Nevada OSHA’s deadlines, and Nevada OSHA has not released any information to employers about the ETS.

We will keep a close eye on Nevada OSHA and the U.S. Supreme Court in the next few days. This legal tennis match is dizzying and confusing for all of us. Out of an abundance of caution, we encourage employers covered by the ETS to contact a KZA attorney to discuss your options. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.

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