OSHA’s COVID-19 Emergency Temporary Standard Is in Flux

Emergency checklist

In any day, the ETS could be back in effect, in whole or in part, or permanently halted.

December 6, 2021
Megan E. Baroni & Jonathan H. Schaefer - Construction Executive

On Friday, Nov. 5, 2021, Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard was issued, with most requirements set to go into effect on Dec. 5. The ETS applies to employers with a total of 100 or more employees company-wide. Employers covered by the ETS would be required to develop, implement and enforce a mandatory vaccination policy, subject to limited exemptions, or allow unvaccinated employees to test regularly and be subject to a mask policy, among other associated recordkeeping, reporting and training requirements.

Almost immediately, the ETS was hit with a number of legal challenges in various courts across the country. On November 6, just a day after the ETS was issued, the U.S. Circuit Court of Appeals for the Fifth Circuit issued an order staying the implementation of the ETS until further notice. The Court’s order was not a final ruling on the validity of the ETS but has halted implementation of the ETS, at least for the time being. Other legal challenges are already in process, further complicating the issue of if and when the ETS will become effective.

As of November 2021, the ETS is on hold, at least temporarily. That could change any day and the ETS could be back in effect, in whole or in part, or permanently halted. The legal challenges to the ETS are unlikely to end, or diminish, until the Supreme Court has weighed in, making for a few uncertain months ahead.

Reprinted courtesy of Megan E. Baroni and Jonathan H. Schaefer, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

Ms. Baroni may be contacted at mbaroni@rc.com
Mr. Schaefer may be contacted at jschaefer@rc.com


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