Client Alert 
December 20, 2021

Per our previous Client Alert, on November 4, 2021 the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard regarding COVID-19 vaccination and testing requirements for employers with 100 or more employees (the “100+ ETS”). The 100+ ETS was effective as of November 5, 2021, but enforcement was subsequently stayed pending a legal challenge.

On Friday evening, the Sixth Circuit Court of Appeals dissolved the stay of the 100+ ETS, and OSHA is now moving forward with enforcement despite already-pending Supreme Court challenges. Per OSHA, employers will now have until January 10 to develop compliant policies and until February 9 to require employees who are not fully vaccinated to begin requiring weekly negative tests.

To account for any uncertainty created by the stay and to provide employers with sufficient time to come into compliance, 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 ETS’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

On a related note, also on Friday, the Eleventh Circuit Court of Appeals upheld the nationwide injunction against the vaccinate mandate applicable to federal contractors, pending further review by the court. Accordingly, federal contractors need not comply with the requirements of the federal contractor vaccine mandate until further notice. However, federal contractors with more than 100 employees will still need to comply with the 100+ ETS.

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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.

This memorandum is published solely for the informational interest of friends and clients of Ellenoff Grossman & Schole LLP and should in no way be relied upon or construed as legal advice.