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New Deadlines for President Biden’s Shot-or-Test Mandate After 6 th Circuit Court of Appeals Lifts Stay

Employers with 100 or more employees will have until January 10, 2022 to comply with the Biden Administration’s vaccine and testing requirements.  OSHA will give companies until February 9, 2022 before issuing citations for violating the ETS provisions.  The enforcement grace period hinges on employers “exercising reasonable, good faith efforts to come into compliance with the standard,” the DOL said.

On November 5, 2021, OSHA issued an Emergency Temporary Standard (ETS) for private employers with 100 or more employees.  Under the ETS, by January 4, 2022, all employees of said employers must be vaccinated or must wear face coverings and submit to weekly COVID testing.  Almost immediately, challenges were launched in several courts throughout the United States.

On November 6, 2021, the 5th Circuit Court of Appeals issued a stay of the mandate, placing the entire ETS on hold.  Because of the multitude of challenges around the county, the cases were consolidated and a random drawing was held to determine the Court that would hear all matters.  The 6th Circuit Court of Appeals was selected.

Late Friday afternoon, the 6th Circuit Court of Appeals reinstated the Biden administration’s vaccine and testing requirement for private employers with 100 or more employees.  On Saturday, December 18, 2021, the US Labor Department announced the new deadlines for compliance.  The new deadlines afford more time for an appeal of this decision.

Such an appeal has already been filed with the US Supreme Court.  With so much uncertainty at this point, it is anticipated the Supreme Court will act swiftly to provide some direction going forward.  For now, all private employers with 100 or more employees should begin to take steps to implement the provisions of the ETS.  We will continue to provide updates as developments arise.

If you have any questions or concerns, please contact Joel S. Aziere at jaziere@buelowvetter.com or (262) 364-0250 or your Buelow Vetter attorney.

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