OSHA extends public comment period for COVID ETS

On November 30, and despite previously stating that it would take no further action to implement its November 5 “vaccine or test” Emergency Temporary Standard (ETS) in light of a nationwide stay ordered by the Fifth Circuit, the Occupational Safety and Health Administration (OSHA) announced it is extending until January 19, 2022, the comment period to allow stakeholders more time to assemble information necessary to respond.

A public comment period is required by law before any effort can be undertaken to turn an ETS into a permanent standard.

OSHA’s motion to dissolve the current stay, filed in the Sixth Circuit (to which all procedural and substantive legal challenges have now been assigned) is not expected to be heard by the court until at least mid-December 2021. Regardless of how the court rules on that motion, it will still need to hear and rule upon the numerous constitutional and other challenges that have been raised by multiple states’ Attorneys General, employers, unions, trade associations, and other affected individuals and entities.

In its November 30 announcement, OSHA reiterated that its ETS “… covers employers with 100 or more employees. Covered employers must develop, implement and enforce a mandatory COVID-19 vaccination policy, unless they adopt a policy requiring employees to either get vaccinated or undergo regular COVID-19 testing and wear a face covering at work. More information about the ETS is available on OSHA’s COVID-19 Vaccination and Testing ETS webpage.”

Special thanks to law clerk Michelle Avidisyans (Los Angeles) for her assistance in the preparation of this content.