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ACEC News / Advocacy

December 21, 2021

OSHA Webinars on ETS Today and Tomorrow

By Dan Hilton

Below this message is an update from the Department of Labor, which includes updated resources for the implementation of the emergency temporary standard and two webinar opportunities this week that will allow for employers to submit questions in advance.

An appeal of last Friday’s decision has been made to the Supreme Court, along with a request for an emergency injunction, which can be read here. In addition, 26 state attorneys general have also filed a second emergency injunction to the Supreme Court, which can be found here.

It is up to the Supreme Court to decide whether or not OSHA has ability to enforce the ETS until full legal briefing and hearing on the merits of the legal challenges to the ETS occurs.  So far, all of the challenges have been about whether the ETS should be stayed pending a full review of the legal challenges, which could take several months to occur.  The request before the Supreme Court is not whether the ETS is a valid regulation, but whether an emergency stay should be granted prohibiting OSHA from implementing and enforcing the ETS while the parties and courts prepare to argue the merits.

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On Friday, December 17th, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard (ETS). The Department of Labor (DOL) and the Occupational Safety and Health Administration (OSHA) can now resume implementing this vital workplace health standard. The ETS establishes requirements to protect employees of large employers (100 or more employees) from the risk of contracting COVID-19 in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the ETS compliance dates. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for non-compliance with any requirements of the ETS before January 10 and will not issue citations for non-compliance 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.

The Department of Labor will provide two briefings this week with senior DOL and OSHA officials to discuss recent developments and updated guidance related to the rule. A prerecorded webinar on the content of the ETS is available here.  Attendees are encouraged to review guidance and information from OSHA ahead of the briefing and submit questions using the RSVP links below.

ETS Briefing schedule:

Tuesday, 12/21/21 from 3-3:45pm ET

RSVP here or the full link: https://usdolevents.webex.com/usdolevents/onstage/g.php?MTID=e1b32a9f39909ed83ee28fba17b0c9082

Wednesday, 12/22/21 from 2-2:45pm ET

RSVP here or the full link: https://usdolevents.webex.com/usdolevents/onstage/g.php?MTID=ee4035ad7068620a08275e4f23935af30

More information on the ETS can be found at these links:

Vaccination and Testing ETS landing page

Full Vaccination and Testing ETS text

Dan Hilton is ACEC Director of Procurement Advocacy & International Affairs


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