OSHA Emergency Temporary Standard (ETS) Stay Lifted
On Friday evening, December 17, 2021, the U.S. Court of Appeals for the Sixth Circuit ruled to dissolve the ruling of the U.S. Court of Appeals for the Fifth Circuit to block the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccination and testing emergency temporary standard (ETS).
The ETS mandates employers with 100 or more employees to require workers to be vaccinated against COVID-19 or undergo weekly testing.
On November 23, OSHA filed an emergency motion requesting that the Fifth Circuit’s stay be dissolved or modified by the Sixth Circuit. After reviewing motions and oral arguments from the government and state attorneys general and private employers, a three-judge panel from the Sixth Circuit ruled to dissolve the Fifth Circuit’s stay.
The Sixth Circuit Opinion stated:
“Fundamentally, the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs”
In response to the Sixth Circuit’s ruling, OSHA has issued the following statement:
“To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.”
Acknowledging the stay period, OSHA has effectively reset the ETS’s compliance deadlines to:
- January 10, 2022 (originally December 6, 2021); and
- February 9, 2022 (originally January 4, 2022).
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