We reported on Dec. 6 and Dec. 8 you should keep working on your compliance with OSHA’s vaccine mandate despite the ongoing court battle. That turned out to be good advice. Because late on Dec. 17, the Sixth Circuit Court of Appeals lifted the Fifth Circuit’s stay of OSHA’s ETS on COVID-19 vaccination and testing for employers with at least 100 employees.
The court decision stated that “OSHA has demonstrated the pervasive danger that COVID-19 poses to workers – unvaccinated workers in particular – in their workplaces.”
But the decision wasn’t unanimous. Judge Joan Larsen, appointed by President Trump, dissented.
In the end, however, Judge Jane Stanch, appointed by President Obama, and Judge Julia Smith Gibbons, appointed by President George W. Bush won out.
“Fundamentally, the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs,” said Judge Stanch, in the 57-page court document.
So, what’s going on with OSHA and its compliance?
“OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard,” said the DOL in a statement. “OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.”
As for compliance, OSHA won’t issue citations for any for noncompliance with any requirements of the ETS before Jan. 10, 2022. And it won’t issue citations for noncompliance with the standard’s testing requirements before Feb. 9, 2022 … “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
This is a longer reprieve than most experts predicted employers would get.
The DOL also said OSHA will work closely with the businesses to provide compliance assistance.