On November 16, 2021, the Occupational Safety and Health Administration (OSHA) announced that its Emergency Temporary Standard (ETS) is being put on hold due to pending litigation. OSHA indicated that it will suspend "activities related to the implementation and enforcement of the Emergency Temporary Standard (ETS) pending further developments in the litigation." 

On Friday, November 19, 2021, we notified member companies who may be subject to the OSHA ETS of this news.

The OSHA ETS went into effect on November 5, 2021, and was set to have two compliance dates:

• December 5, 2021: Covered Employers (subject to the OSHA ETS) must be in compliance with most of the ETS’ COVID policies and requirements, including PTO for vaccination and face coverings for unvaccinated employees, recordkeeping, reporting and removal of COVID-positive employees.
• January 4, 2022: All covered employees must have received their vaccination, even if they still have not completed the 2-week waiting period, or begin undergoing weekly COVID-19 testing.

Read Hawaii Employers Council's brief on the OSHA ETS as well as resources for Covered Employers by clicking here.

After a stay of the OSHA ETS issued by the U.S. Court of Appeals for the 5th Circuit and complaints filed in multiple circuit courts, on November 16, the 6th Circuit Court of Appeals was selected to review the consolidated legal challenges to the OSHA ETS. The 6th Circuit will be authorized to uphold or lift the 5th Circuit’s order halting the vaccine mandate for Covered Employers. If all or part of the OSHA ETS is upheld, the implementation and compliance requirements will be determined by the 6th Circuit Court (or the U.S. Supreme Court). As of this writing, there is no timeline for when the 6th Circuit Court of Appeals may make a ruling.

We will keep you apprised of any developments. Covered Employers should not expect implementation and enforcement of the OSHA ETS until further court order. In the meantime, we encourage Covered Employers to continue to track and monitor developments, and understand the requirements, including compliance dates, should the OSHA ETS survive the upcoming litigation.

Please stay tuned for additional updates.