OSHA Announces Shot-or-Test Mandate Enforcement Begins in January

As discussed in the article we published in the early morning hours on Saturday, December 18, the U.S. Court of Appeals for the Sixth Circuit gave new life to OSHA’s Vaccination or Testing Emergency Temporary Standard (“ETS”). Late the prior day, the Sixth Circuit lifted the stay that had been placed on the ETS by the Fifth Circuit Court of Appeals in early November.

Almost immediately after the Sixth Circuit lifted the stay, the petitioners challenging the ETS appealed their loss to the U.S. Supreme Court. The Supreme Court can either grant or deny further review of the case.

Rather than wait to see what the Supreme Court does with the appeal, OSHA announced that it is once again implementing its Vaccination or Testing ETS. To “account for any uncertainty created by the stay . . . [and] provide employers with sufficient time to come into compliance,” the agency stated:

“[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. OSHA will work closely with the regulated community to   provide compliance assistance.”

So what does this mean for employers? Probably frustration, as many employers took steps to comply with the ETS, were then told the ETS was stayed, and are now being told the ETS is again in place – but it may or may not be in place at some unknown point in the future following review by the Supreme Court (which review may not even occur).

Prudent employers subject to OSHA’s jurisdiction that have 100 or more employees will (a) proceed with plans to comply with the ETS, (b) reach full compliance by January 10, and (c) begin weekly testing of unvaccinated employees not later than February 9. Failure to do so, assuming the Supreme Court has not re-imposed a stay by those dates, could result in OSHA citations carrying hefty civil money penalties – almost $14,000 for “serious” and “other than serious” citations, and $140, 000 for “willful” citations, if the ETS is still in place as of January 10.

We will continue to provide timely updates regarding this on, and off, and on again, and possibly off again, sweeping mandate.