Supreme Court Decision Pending on Freeze of OSHA COVID-19 Vaccination-or Testing ETS

Employers with 100 or More Employees Weigh Compliance Approaches  

As of January 13, the Supreme Court has not issued a decision on whether or not the Sixth Circuit was correct when it decided on December 17, 2021, to remove the nationwide stay (freeze) on implementation and enforcement of the OSHA COVID-19 vaccination-or-testing emergency temporary standard (ETS). The Court heard oral arguments on January 7 and can issue a decision on whether to reinstate the stay or not at any moment. Meanwhile, under OSHA compliance guidance, all of the ETS requirements—except the weekly testing requirement for the unvaccinated—took effect on January 10 and are subject to enforcement. The weekly testing requirement takes effect on February 9. For more on these requirements and the latest on federal vaccination mandates, see AGC’s construction-oriented summary of the ETS and summary of AGC’s litigation on this ETS and the federal contractor vaccine mandate. 

The pending decision in the Supreme Court has left employers with 100 or more employees taking different approaches to compliance. On the one hand, some employers mandated compliance with the applicable January 10 requirements on that date, including the mask mandate for the unvaccinated. On the other hand, some employers are delaying compliance with these requirements until the Supreme Court issues its decision. These employers fear the practical issue of telling employees to follow the ETS requirements in the field one day and then those requirements being suspended shortly thereafter. Both approaches have their pros and cons, but technically speaking, the first approach is in line with OSHA’s latest compliance guidance.

Even with the Supreme Court’s decision on the stay, the ETS litigation is far from over. The Sixth Circuit has yet to consider the merits of the ETS, which could take months. Rest assured, AGC of America remains actively engaged in the litigation, having filed its Construction Advocacy Fund-backed lawsuit against the ETS on November 15, 2021.  

In an effort to assist AGC members with increasing the vaccination rates among their workforce and with understanding the ETS requirements, the association created a COVID-19 vaccine tool kit webpage that contains a construction-oriented summary of the ETS detailing employers’ compliance options and obligations as well as additional resources. This toolkit also includes a series of vaccine Public Service Ads AGC of America created specifically targeting construction workers.

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