January 5, 2022
Employment Alert: 
Best Practices for Larger Employers Awaiting U.S. Supreme Court
Ruling on Federal OSHA Emergency Temporary Standard
Under the federal Occupational Safety and Health Administration's (“OSHA”) emergency temporary standard (“ETS”), businesses with 100 or more employees must ensure employees are either fully vaccinated against COVID-19 or tested weekly and continuing to mask. Although the U.S. Court of Appeals for the Fifth Circuit had temporarily stayed the ETS, the U.S. Court of Appeals for the Sixth Circuit, which was later designated to hear consolidated appeals of the ETS, dissolved the stay on Dec. 17, 2021. Consequently, larger employers will have to comply with the ETS, unless the U.S. Supreme Court rules otherwise. Oral argument is scheduled for Jan. 7, 2022; stay tuned for additional updates.
Depending on how the Supreme Court rules, employers may have a very tight deadline to comply with the ETS. The start date for enforcement of the testing requirement has been extended (from Jan. 4) to Feb. 9, 2022. However, enforcement of the other components of the ETS take effect on Jan. 10, 2022 (extended from Dec. 6, 2021), including the requirement for larger employers to determine employees’ vaccination status and develop a written policy.
For states that have their own OSHA-approved occupational safety and health programs, including Oregon and Washington, the state OSHA programs must adopt a rule that is “at least as effective” as the federal ETS. That is, these states are required to adopt the same or similar standard as the ETS by Jan. 24, 2022. Like the federal standard, the anticipated effective date of the state standard would be 30 days from adoption. Oregon and Washington OSHA programs are still evaluating whether to adopt the same requirements as the ETS or more stringent rules.

Click on the link below for more information and best practices.

If you have questions or would like any assistance with ETS compliance, please reach out to our Employment attorneys at any of the email addresses below or 503.228.6044.
Trish Walsh focuses her practice in the areas of litigation and employment law, protecting clients' interests inside and outside the courtroom. In her employment practice, Trish drafts, audits and updates policy handbooks and provides advice on employment issues under Oregon, Washington and federal laws.

Contact Trish at 503.228.6044 or twalsh@fwwlaw.com

Kelly Tilden  focuses her practice in the areas of employment law, business, and litigation. She advises clients regarding the hiring, discipline and termination of employees, compliance with state and federal civil rights, wage and hour laws, and leave laws. Kelly offers practical guidance and experienced-based insight to help employers confidently apply state and federal regulations. She has been selected by her peers for inclusion in the Best Lawyers in America® 2018-2022 for Employment Law - Management.

Contact Kelly at 503.228.6044 or ktilden@fwwlaw.com
Kim McGair's practice emphasizes a wide range of litigation matters including employment, commercial litigation, commercial collections, personal injury defense, and real estate litigation. She is an advocate for her clients and provides them with sensible advice and strong representation to protect their interests and help them achieve their objectives as efficiently as possible. Kim was selected by her peers for inclusion in the Best Lawyers in America® 2018-2022 for Commercial Litigation and to the Oregon Super Lawyers list 2019-2021 for Commercial Litigation.

Contact Kim at 503.228.6044 or kmcgair@fwwlaw.com
Jon Himes practices in several areas including litigation, employment, and financial services, enabling him to assist clients with a full-range of legal and business challenges. His employment practice focuses on employment litigation and wage and hour laws. 
Contact Jon at 503.228.6044 or jhimes@fwwlaw.com
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The contents of this publication are intended for general information only and should not be construed as legal advice or opinion on specific facts and circumstances.