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Legal Alert: OSHA ETS Mandate Going to Supreme Court

On December 17, 2021, the United States Court of Appeals for the 6th Circuit (6th Circuit) dissolved the stay of OSHA’s November 5, 2021, Emergency Temporary Standard (ETS) for private employers with 100 or more employees issued by the United States Court of Appeals for the 5th Circuit (5th Circuit). As a result of the 6th Circuit’s decision, OSHA announced that it intends to move forward with implementing the ETS.

Following that ruling, on December 22, 2021, the Supreme Court of the United States announced it will hear oral arguments on January 7, 2022, on both the OSHA ETS case for private employers as well as a related vaccine mandate for healthcare workers.

OSHA had indicated it will not issue citations for noncompliance with its November 5, 2021 ETS before January 10 (which is now the deadline for employers to, among other things, develop their written COVID-19 vaccination policies). Further, if an employer is exercising reasonable, good faith efforts to come into compliance with ensuring its employees are fully vaccinated or submit to weekly testing, OSHA will not issue citations for any employees who are not fully vaccinated before (or if the employer is not testing prior to) February 9, 2022.

It remains to be seen if OSHA will formally announce an additional delay in implementation pending the Supreme Court arguments, and it is currently unclear how long the Supreme Court will take to issue its opinions following oral arguments. Employers subject to either mandate should continue to watch carefully for additional updates, and continue to prepare for implementation of the rules in the event they are upheld.

If you have any questions, please reach out to your local Alera Group office or email us at info@aleragroup.com for more information. 

About the Author

Danielle Capilla
Vice President of Compliance, Employee Benefits 
Alera Group

Danielle is a Vice President and the Director of Compliance for Alera Group's Employee Benefits division. She previously served as the Senior Vice President of Compliance and Operations and Chief Compliance Officer at United Benefit Advisors (UBA). Additionally, she served as an Adjunct Professor at DePaul University. She worked as a Senior Writer Analyst at Wolters Kluwer and as a Law Clerk at Clifford Law Offices.

Danielle graduated with a B.A. in Sociology, History, and Business at Tulane University. She earned her JD in Health Law from DePaul University College of Law.

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The information contained herein should be understood to be general insurance brokerage information only and does not constitute advice for any particular situation or fact pattern and cannot be relied upon as such. Statements concerning financial, regulatory or legal matters are based on general observations as an insurance broker and may not be relied upon as financial, regulatory or legal advice. This document is owned by Alera Group, Inc., and its contents may not be reproduced, in whole or in part, without the written permission of Alera Group, Inc. Updated as of 01/03/2022.

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