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At press time, we are awaiting arguments in the Sixth Circuit Court of Appeals and an opinion to decide the fate of the COVID-19 Vaccination and Testing; Emergency Temporary Standard (ETS). However, we can report:

  • The Sixth Circuit schedule indicates the court is collecting motions/responses through December 10.
  • OSHA attorneys filed a motion opposing petitions for the Sixth Circuit to hear the case with the 16-member court. The agency prefers a three-judge panel.
  • OSHA issued an extension of the ETS comment period until January 19. See the December 3 Federal Register for details.
  • According to a November 10 memo from council for the National Labor Relations Board, where the ETS provides employers with discretion, ETS-covered employers have bargaining obligations regarding aspects of the ETS that affect terms/conditions of employment.

News Update 1: On December 8, 2021, the Senate voted 52-48 in favor of S. J. Res. 29 to nullify the ETS. The resolution now goes to the House, and White House advisors recommend the President veto it.

News Update 2: On December 10, 2021, OSHA submitted a brief asking the Sixth Circuit to dissolve the current stay of the ETS rule. OSHA suggested the court could also opt to modify the stay to allow the masking-and-testing requirement to remain in effect pending litigation, if the court finds it cannot dissolve the stay of the vaccination provision. Interestingly, the brief mentions that employers can seek a "variance" to the ETS, where appropriate, to avoid irreparable harm.

News Update 3: On December 15, the U.S. Court of Appeals for the Sixth Circuit denied a petition to have all 16 active judges hear the case. Instead, the case will be heard by a three-judge panel.

News Update 4: On December 17, the U.S. Court of Appeals for the Sixth Circuit dissolved the stay issued by the Fifth Circuit. That means the court challenge is still ongoing, but the ETS is actively in effect pending judicial review of the case. The court supported its decision to dissolve the stay in 29 pages that analyzed the high bar to merit a stay, OSHA’s likelihood to win the case, and the question of irreparable harm to the public interest. The court explains that the OSH Act plainly authorizes OSHA to act to assure the healthful working conditions for the nation’s work force.

News Update 5: On December 17, OSHA says the agency can now implement the ETS. However, to account for any uncertainty created by the earlier stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To allow employers 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.”

News Update 6: Please refer to the Vax-or-Test ETS back in effect after court lifts stay article for more updates.