On December 17, 2021, in a split decision, a three-judge panel of the Sixth Circuit Court of Appeals lifted the Fifth Circuit’s stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing for employers with at least 100 employees. Following issuance of the decision, OSHA announced that it will not issue citations for noncompliance with the ETS before January 10, 2022. OSHA further stated that it will not issue citations for noncompliance with the ETS’s testing requirements before February 9, 2022, so long as an employer is exercising “reasonable, good faith efforts” to comply.
Mika Meyers previously summarized the ETS’s requirements in a November 5, 2021 Client Alert, found here: https://bit.ly/3FkjKH5.
The Michigan Occupational Safety and Health Administration (MIOSHA) has not yet issued a statement or implemented a rule incorporating the ETS’s requirements, although it is generally required to do so within thirty (30) days of OSHA’s issuance of a rule. Michigan employers, although subject to MIOSHA (not OSHA) rules, should look to the OSHA ETS for planning purposes, as MIOSHA is required to implement a standard “at least as effective” as the OSHA standard. MIOSHA previously indicated that it did not intend to issue a standard more stringent than the OSHA ETS.
Multiple entities, including several states, have filed emergency appeals to the United States Supreme Court. Mika Meyers will continue to monitor developments regarding the ETS, and encourages employers with 100+ employees to begin preparations to comply with the ETS. Employers with questions regarding the OSHA ETS, employer-imposed vaccine/testing mandates, or other COVID-19 matters should contact Nikole Canute, Scott Dwyer, or Nate Wolf.