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On Friday, the Sixth Circuit Court of Appeals lifted the stay on the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) regarding Covid-19 vaccine mandates.  There’s a lot to unpack, with more to come, but here’s where things stand now:

Q: Is the Sixth Circuit Court’s decision being appealed?
A: Yes – several states have filed emergency motions with the U.S. Supreme Court to block the ETS. These appeals are now with Justice Brett Kavanaugh, who will either distribute the application to the full court to consider or decide the request on his own. It is also a possibility that the full Sixth Circuit could take up the matter.  
 
Q: Now that the ETS is back on, when do I need to comply?
A: All employers with more than 100 employees must now comply with the requirements of the ETS before OSHA begins issuing citations on January 10. Citations for the standard’s testing requirements will not be issued until February 9, so long as an employer is “exercising reasonable, good faith efforts to come into compliance with the standard.” Read OSHA’s full statement.
 
Q: Is the federal contractor vaccine mandate back on as well?
A: No, at least not at this time. President Biden’s vaccine mandate for companies with government contracts is being litigated separately from the OSHA ETS, and it is currently blocked. On December 7, the U.S. District Court for the Southern District of Georgia issued a nationwide injunction that prevents enforcement of the federal contractor vaccine mandate. This order may be challenged on appeal.
 
Q: What does this mean for Montana’s law that prohibits discrimination based on vaccination status?
A: This remains unclear. Montana is one of 11 states that have enacted measures that would restrict or impact vaccination requirements. While the Sixth Circuit lifted the stay, it has yet to decide whether the ETS overrides state or local laws due to federal preemption. Impacted Montana employers should prepare to comply with both the OSHA ETS and HB 702 until this question is resolved. 
 
Q: What is the Montana Chamber of Commerce doing considering this news?
A: The Montana Chamber remains opposed to the OSHA ETS and is exercising all appropriate measures to deliver relief and clarification for the business community on this matter. We successfully lobbied our U.S. Senate delegation to support a resolution in opposition to the ETS, but with Friday’s action in the courts we expect the debate to continue there. Our top priority is for the courts to determine whether the ETS overrides Montana’s antidiscrimination law. Montana Chamber leadership is also scheduling meetings with state officials to learn more about their approach with employers in a scenario where the ETS and HB 702 are simultaneously enforced.  
 
Q: What should I be doing now?
A: Continue consulting your attorney and/or HR manager in preparation for the ETS enforcement deadlines, while simultaneously designing your procedures in compliance with Montana HB 702. 
 
Q: How can I weigh in on the ETS?
A: OSHA, which is part of the U.S. Department of Labor, published the ETS in the Federal Register on November 5. An emergency temporary standard may remain in place for only six months from the date of publication, but now the agency is considering a permanent vaccine-or-testing standard. OSHA is accepting comments on the proposal through January 19, 2022, at www.regulations.gov in Docket No. OSHA-2021-0007. Click here for information about areas of interest to OSHA in the comments.

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