The Sixth Circuit Court of Appeals recently voted to reinstate the OSHA Emergency Temporary Standard (ETS) for COVID-19 as the Omicron variant surges. The decision extends the ETS deadline set to go into effect this month (December 2021) until January 10, 2022, and February 9, 2022.
With the ever-evolving guidelines related to the COVID-19 pandemic, employers must remain informed of the most recent and updated workplace developments.
The Recent ETS Court Decision and Its Impact on Your Business
The most recent court ruling allows OSHA to implement and enforce the ETS, requiring businesses made up of 100 or more employees to implement a vaccination and testing policy.
For guidance on the latest ETS development, OSHA has provided the following statement on its website:
"To provide employers with sufficient time to come into compliance, OSHA will not issue citations for non-compliance with any requirements of the ETS before January 10 and will not issue citations for non-compliance 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."
ETS Deadlines on COVID-19 Vaccination & Testing
The following deadlines apply to the federal OSHA ETS. Please note, individual States with their own OSHA-approved State Plans may enact additional requirements. Businesses should contact their state office for further clarification about state-specific dates.
January 10, 2022 - Businesses covered must be in a reasonable, good-faith effort to comply with the ETS.
February 9, 2022 - Businesses must comply with the testing requirements of the ETS.
With the new ETS compliance deadlines looming, it is recommended that employers develop their COVID-19 workplace policy as quickly as possible. The following provides an overview for businesses to assess to attain OSHA ETS compliance.
Requirements for compliance are as follows:
Review the OSHA website for help complying with the new ETS standards. Summaries, sample policies, and notice requirements can be found here.
Develop a mandatory vaccination policy OR a policy that offers employees a choice to either receive a vaccination or undergo COVID-19 testing and wear a face mask while at work in place of vaccination.
Develop OSHA-required notices. Test results, records, and employee vaccination statuses must be maintained as long as the ETS remains in effect.
Implement a system to gather and document proof of employee vaccinations.
Develop a testing process including proctored tests and associated tracking for unvaccinated employees.
It's essential to start developing a COVID-19 plan now to ensure an organization is ETS compliant by January and February.
Below are some graphics you can share with your businesses and employees.