Authors: John Lowery and Jessica Lawrence

On Friday evening, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit dissolved the stay of OSHA’s COVID-19 Emergency Temporary Standard (“ETS”).  The stay was previously put into place by the Fifth Circuit.  The ETS imposes “vaccinate or test” requirements for private employers with more than 100 employees.  The order from the Sixth Circuit set off a slew of applications to the U.S. Supreme Court requesting a stay pending Supreme Court review.

There is a lot of uncertainty right now as to whether the stay will remain in place.  Fortunately, OSHA has given a brief extension of time for employers to comply.  Employers now have until January 10th in order to develop their policy and until February 9th in order to begin testing programs.

The employment attorneys at MF&L continue monitoring developments.  While we are waiting on guidance from the Supreme Court, Employers should continue to develop their COVID-19 policies and procedures to comply with the vaccination or testing requirements of the ETS.  Employers should also continue collecting proof of employees’ vaccination status, drafting an ETS policy and putting together a testing protocol for those employees who would be masking + testing.

Under the ETS, the policy must include accommodations for employees who cannot get the vaccine due to medical or religious exemptions. Therefore, employers should use this time to review their procedures for requesting exemptions based upon disability or genuinely held religious beliefs.

If you need assistance drafting your COVID-19 policy or ensuring that you have adequate procedures in place for exemption requests, please reach out to one of our employment attorneys.