May 17, 2022

Volume XII, Number 137

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May 16, 2022

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OSHA Reinstates Vaccination Requirement for Employers With 100+ Employees

On December 17, the United States Court of Appeals for the Sixth Circuit, which was tasked with adjudicating nationwide lawsuits challenging the Occupational Safety and Health Administration's (OSHA) rule mandating employers with 100+ employees to require COVID-19 vaccination and/or testing of employees (the OSHA Rule), lifted the stay of the rule. As a result, the OSHA Rule is now back in effect for covered employers. See our previous updates: Q&A – A Closer Look at OSHA's Vaccination Requirement for Employers With 100+ Employees and Update on OSHA's Vaccination Requirement for Employers With 100+ Employees for an explanation of the OSHA Rule and the prior stay.

In light of the Sixth Circuit ruling, OSHA is moving forward with implementing the rule, albeit on a slower schedule. Specifically, OSHA has stated that it "is exercising enforcement discretion with respect to the compliance dates" and "will not issue citations for noncompliance with any requirements of the [OSHA Rule] before January 10 and will not issue citations for noncompliance with the [OSHA Rule's] testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard."

This means that employers have until January 10, 2022 (previously December 6, 2021) to develop, implement, and enforce either (1) a mandatory COVID-19 vaccination policy; or (2) a policy giving employees the option to get COVID-19 vaccinations or submit to weekly COVID-19 testing and mandatory masking, and to begin providing employees with paid time off for COVID-19 vaccination, and take other steps toward compliance. Then, employers have until February 9, 2022 (previously January 4, 2021) to ensure their employees (other than those eligible for an exception) are either fully vaccinated or submit to weekly testing and mandatory masking.

The United States Supreme Court already has received numerous petitions to review the Sixth Circuit's decision, so further developments may ensue. But even with the ultimate fate of the OSHA Rule uncertain, we advise clients to take steps toward compliance since the due dates for action are fast-approaching.

Katten attorneys will continue to monitor the legal challenges to the OSHA Rule as well as the Biden Administration's response to those legal challenges and inform clients of future developments that impact OSHA's ability to implement and enforce the vaccine and testing requirement.

©2022 Katten Muchin Rosenman LLPNational Law Review, Volume XI, Number 355
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About this Author

Julie L. Gottshall, Employment Law Lawyer, Katten Muchin Law Firm
Partner

Julie L. Gottshall serves as the Chicago head of the Employment Law and Litigation practice. She practices nationally in the area of employment law, providing litigation representation and counseling on behalf of management.

Julie also represents both companies and individuals in matters relating to unfair competition and the enforcement of restrictive covenants, such as confidentiality and non-compete agreements. In addition to her litigation practice, Julie negotiates and drafts employment and separation agreements and restrictive covenant agreements, conducts...

312-902-5645
Michelle A. Gyves Employment Litigation and Counseling Attorney Katten Muchin Rosenman New York, NY
Partner

Michelle Gyves helps domestic and multinational employers navigate a wide range of employment issues with legal components to them. They include hiring and termination, compensation and benefits, restrictive covenants, workplace investigations, diversity and inclusion, and global mobility.

Keeping employers current on legal obligations

Michelle has conducted numerous multistate and multicountry audits of employment laws and practices, ensuring clients' compliance in a wide range of areas. Her experience covers data privacy, disability and leave laws, employer health and...

212.940.6585
Stacey Knight, partner, Katten Muchin Rosenman Law Firm
Partner

Stacey McKee Knight serves as national co-chair of the Litigation and Dispute Resolution practice, and is a member of Katten's Board of Directors and the firm's Executive Committee. She concentrates her litigation practice in the areas of labor and employment law. Stacey has extensive class action experience and focuses primarily on wage and hour class actions and collective actions, including Fair Labor Standards Act, meal and rest period, donning and doffing, vacation and regular rate of pay claims at the state and federal levels. Stacey represents management in a variety of...

310-788-4406
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