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OSHA COVID-19 Vaccine-or-Testing Mandate to Take Effect

On December 17, the U.S. Court of Appeals for the Sixth Circuit removed the stay on the OSHA COVID-19 vaccine-or-testing emergency temporary standard (ETS). As a result of this decision, OSHA will begin to implement and enforce the ETS in 2022. OSHA will still proceed with the rulemaking process to issue a COVID-19 vaccination-or-testing permanent standard.

On December 17, the U.S. Court of Appeals for the Sixth Circuit removed the stay on the OSHA COVID-19 vaccine-or-testing emergency temporary standard (ETS). The court's decision to remove the stay has been appealed to the Supreme Court. The litigation of the ETS is far from over and AGC remains engaged, having filed its Construction Advocacy Fund-backed lawsuit in November. 

As a result of this decision, OSHA will begin to implement and enforce the ETS in 2022.
Specifically:

  • OSHA will not issue citations for noncompliance with any requirements of the OSHA ETS before January 10, 2022; and 
  • OSHA will not issue citations for noncompliance with testing requirements before February 9, 2022.

These extensions, however, are conditioned on an employer exercising reasonable, good faith efforts to come into compliance. In an effort to assist AGC members with increasing the vaccination rates among their workforce and to comply with the ETS requirements, the association created a vaccine tool kit webpage that contains a construction-oriented summary of the ETS detailing employers' compliance options and obligations as well as additional resources.
 

OSHA COVID-19 Vaccine-or-Testing Permanent Rulemaking

It is also important to note that regardless of any decision issued by the courts, OSHA will still proceed with the rulemaking process to issue a COVID-19 vaccination-or-testing permanent standard. Under current law, an emergency temporary standard remains in effect for six months and serves as a proposed rule for the proceeding. After such time, OSHA will determine if the standard should be made a permanent rule. As is the case with the litigation process, AGC is actively engaged in the rulemaking process and will submit comments highlighting the relevant differences between the construction and the other industries that the ETS covers.

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To learn more about what this means for you and your business, please register for the January Lunch & Learn on Tuesday, January 18, 2022 at noon for a panel discussion moderated by AGC President and CEO of Nabholz Construction, Jake Nabholz. 
Please email jadams@agcar.net to register today.

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