Sixth Circuit Revives OSHA COVID-19 Emergency Temporary Standard

On Friday, the U.S. Court of Appeals for the Sixth Circuit lifted a stay of OSHA’s Emergency Temporary Standard (ETS) on COVID-19 vaccination and testing for employers with 100 or more employees. As we previously posted, the Fifth Circuit almost immediately issued a stay of the ETS after its release. The Sixth Circuit’s ruling puts the ETS back on track as its January 4, 2022, compliance deadline approaches. Multiple parties have already filed emergency motions with the U.S. Supreme Court to eliminate the ETS entirely. The legal ping-pong match will surely continue into 2022.

Meanwhile, OSHA issued a statement on Saturday that no citations will be issued for noncompliance with the ETS before January 10, 2022. OSHA will also exercise discretion and not issue citations for noncompliance with testing requirements under the ETS before February 9, 2022, if “an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” While OSHA’s statement provides covered employers some breathing room, time is running out to put in place the necessary measures to comply with the ETS. That is, if the Supreme Court does not volley in before January 4, 2022.