This summary is an update to the GrayRobinson Labor and Employment Team Insight Series following the December 21 communication, OSHA’s COVID-19 ETS Stay Dissolved; Federal Contractor Vaccine Mandate Still Enjoined.
The Occupational Safety and Health Administration (OSHA) conducted two briefings this week. The first on December 21 and the second on December 22 to discuss its Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing.
The presenters explained that on December 17, 2021, the U.S. 6th Circuit Court of Appeals lifted the 5th Circuit’s stay on the vaccination and testing ETS. This means the ETS is in effect, and this past weekend OSHA issued implementation and enforcement guidance.
Ed Baird, Associate Solicitor of Labor for OSHA, said OSHA will be looking for good faith efforts by employers to implement these standards. Although the standards are effective immediately, the vaccine standard will be enforced beginning January 10, 2022, and the testing standard will be enforced beginning February 9, 2022.
At least 13 applications for an emergency stay have been filed with the Supreme Court, and OSHA has until December 30, 2021, to submit its response.
OSHA will be updating its Frequently Asked Questions (FAQs) to address inquiries related to testing and other provisions of the ETS.
Jim Frederick, Deputy Assistant Secretary of Labor for OSHA, said the emergency standards were published for comment on November 5, 2021, and the ETS is a proposal for a permanent standard. The deadline for comment has been extended by 45 days, so comments on the standards are now due to OSHA by January 19, 2022. He encourages stakeholders to submit comments at www.regulations.gov, Docket no. OSHA-2021-0007.
Andy Levinson, Deputy Director of OSHA’s Directorate of Standards and Guidance, presented on the substance of the ETS. A pre-recorded version of OSHA’s presentation and the complete slide deck are available on OSHA’s YouTube channel and website.
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