Late Friday night, the Sixth Circuit lifted the nationwide stay on the OSHA so-called “vax-or-text” rule. 

For employers, the “why” the stay was lifted is less important than the “here’s what it means”.

And the short answer to that is that implementation of the rule will begin immediately (again). Of course, there’s still an appeal to the Supreme Court that will come next but it is far from certain that the nation’s highest court will do anything on this issue if its prior handling of other similar vaccine mandates is to be relied on.

Thus, employers should once again require employees to get “fully vaccinated” or be prepared to test on a weekly basis.  But as OSHA indicated, the new date for compliance will be at least January 10, 2022.

OSHA this morning updated its website to reflect this:

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

With the Omicron variant spreading rapidly in the tri-state area, the rule will be welcome news for some employers, but a headache for others.  Remember: This rule applies to employers with 100 or more employees.

If you’re not sure about what this means for your workplace, be sure to reach out to your counsel. We’re back to the stage in this pandemic when developments are happening fast.