On December 17, 2021, the Sixth Circuit Court of Appeals entered an order dissolving the stay of OSHA’s Emergency Temporary Standard (“ETS”) that had previously been issued by the Fifth Circuit. The ETS applies to private employers with 100 or more employees and certain public employers, and requires covered employers to develop, implement, and enforce a workplace policy mandating COVID-19 vaccinations for employees, with an exception for employers that instead establish, implement, and enforce a policy allowing employees to elect either to get vaccinated or to undergo weekly COVID-19 testing and wear a face covering at the workplace.
Shortly after midnight on December 18, 2021, the U.S. Department of Labor issued a news release indicating OSHA will exercise “enforcement discretion” with respect to the compliance deadlines set forth in 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,” stated the DOL, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
Florida employers must contend with a recently enacted State law that requires employers to provide several exemptions to any mandatory vaccination policy, including exemptions that are not permitted under the ETS. The statute provides for fines of up to $50,000 per violation for employers who are covered by the OSHA ETS.
While it is likely that the Sixth Circuit’s decision will be appealed and that the conflict between the Florida law and the OSHA ETS eventually will be addressed by the courts, employers should prepare for the upcoming January 10 and February 9 compliance deadlines. Covered employers should consult with their labor and employment counsel about any questions pertaining to compliance or implementing a vaccination policy.