On January 7, the Supreme Court heard oral arguments on whether or not the Sixth Circuit was correct when it decided on December 17, 2021, to remove the nationwide stay (freeze) of the OSHA COVID-19 vaccination-or-testing emergency temporary standard (ETS).
A decision from the Supreme Court on whether to reinstate the stay or not could be issued at any time after January 7 and will not go to the merits of the ETS, meaning litigation will continue after this decision. A decision reinstating the stay could alter OSHA’s implementation and enforcement plans, which—at this moment—specifically include that: (1) OSHA will not issue citations for noncompliance with any requirements of the OSHA ETS before January 10, 2022; and (2) OSHA will not issue citations for noncompliance with testing requirements before February 9, 2022. On November 15, 2021, AGC of America filed its Construction Advocacy Fund-backed lawsuit challenging the ETS, and remains engaged in this litigation. In the event AGC members have to comply with the ETS requirements, the association created a COVID-19 vaccine toolkit that contains a construction-oriented summary of the ETS detailing employers’ compliance options and obligations as well as additional resources. The toolkit also includes resources to help members increase vaccination rates within the industry, including a series of COVID-19 vaccine Public Service Ads AGC created that specifically target construction workers.