WASHINTON, D.C. (December 21, 2021)—A federal appeals court has reinstated the Biden administration’s coronavirus vaccination or testing policy for large private businesses, reversing an earlier court ruling that had halted the mandate. The Occupational Safety and Health Administration’s (OSHA) COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) requires all employers with greater than 100 employees either ensure employees are vaccinated against COVID-19 or receive weekly testing.

OSHA has posted on their website the following message:

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 original compliance date was Dec. 6, 2021, for all provisions of the ETS except for the weekly testing requirement which was to take effect Jan. 4, 2022. All employers subject to the OSHA Vaccination and Testing ETS will need to begin complying with the requirements by the revised dates.

All of the provisions in the ETS remain without change, including an exemption for employers that are required to comply with the OSHA Healthcare ETS.

The OSHA Healthcare ETS applies to all certified home health and hospice agencies and to most non-certified agencies that provide care in the home, as well as larger home medical equipment providers. However, the OSHA Healthcare ETS, does not apply to health care support services that are performed away from the health care setting, which for most providers, includes their administrative staff.

Because OSHA intends for there to be no gaps between the two COVID ETS, employees not subject to the Healthcare ETS are covered under the COVID-19 Vaccination and Testing ETS. Therefore, it will be necessary for employers with employees covered by the OSHA Healthcare ETS to determine if they also have employees covered by OSHA Vaccination and Testing ETS.

Employers with greater than 100 employees will need to understand what is required to comply with the OSHA Vaccination and Testing ETS and which employees are subject to these mandates.

To further complicate matters, the OSHA Healthcare ETS was due to expire on Dec. 21, 2021. It is unclear what OSHA intends for that ETS going forward.

Although opponents of the OSHA vaccine and testing mandate plan to proceeded to the United States Supreme Court, employers should be prepared to comply with the requirements by the revise compliance dates.

Presently, there is no change in the injunction on CMS’s rule for a vaccine mandate. CMS issued a suspension on enforcement of its vaccine mandate that is still in place.

OSHA has several tools and resources on their Vaccination and Testing ETS website which includes; fact sheets, policy templates and an extensive FAQ document.

The National Association for Home Care & Hospice has developed an FAQ document about the ETS.