In the wake of the United States Supreme Court’s January 13, 2022 decision to grant emergency relief to stay implementation of the federal Occupational Health and Safety Administration’s Emergency Temporary Standard regarding COVID-19 (“Federal OSHA ETS”), Illinois employers in both the public and private sector were left wondering whether they were still required to implement a vaccinate or test policy in their workplace. On January 14, the Illinois Occupational Health and Safety Administration clarified that they are not required to implement such a policy while the viability of the Federal OSHA ETS is pending.

State Had Adopted Federal ETS

On January 7, 2022, the Illinois OSHA adopted the Federal OSHA ETS through a Preemptory Amendment (“Illinois ETS”).  The Illinois ETS was effective immediately and gave public and government employers until February 24 to establish and implement a vaccinate or test policy.  

Illinois is one of a handful of states with an OSHA-approved State Plan that applies exclusively to state and local government employers. Federal government and private sector employers, on the other hand, are governed by federal OSHA.  Therefore, in Illinois, public sector employers are covered by the Illinois ETS, whereas private sector employers are covered by the Federal OSHA ETS.

Illinois OSHA Provides Update

So, how does the Supreme Court’s decision affect public and private sector employers in Illinois?  Because public sector employers are governed by the Illinois ETS, they would have been required to establish and implement a vaccinate or test policy before February 24. But in light of the Supreme Court’s decision, the Illinois OSHA provided the following update:

Because IL OSHA’s preemptory rule incorporates the federal standard, IL OSHA will similarly stay enforcement of its rule while it monitors federal litigation and determines next steps. Please check back at our website for updates.

As such, neither private nor public sector employers in Illinois are presently required to implement a vaccinate or test policy in their workplace.  Employers can choose to voluntarily adopt a corporate vaccination program, but currently employers are not required to do so under either Illinois OSHA or Federal OSHA.