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Sixth Circuit Court of Appeals has dissolved the Stay of OSHA Emergency Temporary Standard on Vaccination and Testing (ETS)


On Nov. 5, 2021, the Biden administration issued a rule requiring employers at companies with 100 or more employees to develop and implement vaccination policies and protocols. The rule was titled the OSHA Emergency Temporary Standard of Vaccination and Testing (“ETS”). One day later, on Nov. 6, 2021, the U.S. Fifth Circuit Court of Appeals ordered a stay of the ETS requiring OSHA to stop all implementation and enforcement of the vaccination ETS immediately.

The stay was appealed, and on Dec. 17, 2021, the U.S. Sixth Circuit Court of Appeals reinstated the OSHA Vaccine ETS, lifting the stay. The Sixth Circuit ruled that the vaccination ETS is constitutional, and that the costs of delaying implementation of the rule as new variants of COVID-19 spread across the country outweighs any potential injury to individual employees who may be made subject to a vaccination policy.

The U.S. Department of Labor issued a statement that OSHA will not issue citations for non-compliance with any requirements of the before Jan. 10, 2022, and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

The ETS does not apply to independent contractors. However, sponsoring brokerages may choose to implement policies regarding vaccine requirements or protocols, and licensees should check company policies for information.

The vaccine ETS will require employers with over 100 employees to do the following by Jan. 10, 2022:

  • Implement vaccine and testing requirements in the workplace
  • Identify who among their workers are vaccinated and who are not
  • Enforce a mask mandate for unvaccinated workers

It is anticipated that the issue will continue to be litigated, and several trade groups have filed emergency appeal applications to the U.S. Supreme Court requesting another stay pending Supreme Court review.

National Association of REALTORS ® continues to monitor the issue and has announced an intent to keep members informed about developments.

Consider the following resources for assistance in establishing workplace vaccination policies:

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