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News Jan. 6, 2022

U.S. Supreme Court will hear arguments regarding OSHA ETS

The U.S. Supreme Court will hear arguments on litigation challenging the Occupational Safety and Health Administration’s Emergency Temporary Standard that states employers with 100 or more employees must require their employees to be vaccinated or undergo weekly testing and mask wearing to prevent the spread of COVID-19 in the workplace. The Supreme Court hearing, along with another court challenge to a vaccine requirement for certain health care workers, will be held Jan. 7.

OSHA issued the ETS Nov. 4, 2021, but it was blocked from being implemented by an initial court decision shortly after being issued, and OSHA suspended implementation. However, a subsequent court decision by the 6th Circuit Court of Appeals Dec. 17, 2021, reversed the earlier court decision, allowing OSHA to move forward with implementation of the ETS. As a result of the Dec. 17, 2021, court ruling, OSHA posted the following notice on its website indicating the agency is resuming implementation of the ETS with new compliance deadlines of Jan. 10 (originally Dec. 5, 2021, for certain requirements) and Feb. 9 (originally Jan. 4 for the full vaccine/testing requirement):

“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. 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.

“To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. 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 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. OSHA will work closely with the regulated community to provide compliance assistance.”

The notice above can be viewed on OSHA’s ETS website.

Until further action by the Supreme Court, the ETS is back in force with the new compliance deadlines as indicated in OSHA’s notice. View NRCA’s summary of the ETS.

As it stands now, the ETS will remain in effect for six months, at which time the agency will replace it with a permanent rule that could be substantially modified; the agency is accepting comments until Jan. 17 regarding how the ETS should be modified for a permanent rule.

NRCA and its partner, the Construction Industry Safety Coalition, which represents about 50 construction industry stakeholders, each will be submitting comments arguing the ETS should not apply to the construction industry because of the proactive measures already taken to address COVID-19, including efforts to increase vaccinations among its workforce; lack of stakeholder involvement in OSHA’s development of the ETS; low-risk nature of most construction industry work does not meet the definition of “grave danger” within the workplace and should not be included in the ETS; and additional concerns with the ETS.

NRCA will provide more information as it becomes available.

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