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On Friday, December 17, the Sixth Circuit Court of Appeals lifted the stay of the OSHA Vaccinate-or-Test Emergency Temporary Standard (ETS). That means the court challenge is still ongoing, but the ETS is actively in effect pending judicial review of the case.

The appeals court supported its decision to dissolve the stay with 29 pages of text that addressed 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 take action to assure the healthful working conditions for the nation’s workforce.

OSHA giving employers time to ramp up

Following the court decision, OSHA said 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,” the agency said.

Of course, the ETS, which applies to certain employers with 100 or more employees, was published in the Federal Register on Nov. 5, 2021.

What’s next?

It should be noted that several groups have already filed a petition with the U.S. Supreme Court for yet another emergency stay of the rule. We expect a quick ruling, but we don't have a tentative decision date or know what the result will be. So, for now, the ETS is in effect with a grace period for employers to come into compliance. Covered employers are advised to start preparing for implementation of the rule and to track the Supreme Court litigation closely.

News Update 1: Oral arguments (on whether or not to stay the ETS) are scheduled to be held on January 7 before the Supreme Court.

News Update 2: On January 7, the Supreme Court heard oral arguments for and against reinstating a stay of the OSHA Vaccination and Testing ETS. An oral argument transcript and two-hour argument audio are available on the U.S. Supreme Court website, for case number 21A244. A high-court decision was not made on January 7 but is anticipated in the days or even weeks ahead. The upcoming Supreme Court decision will focus only on whether or not to stay the rule pending litigation over the merits of the ETS.

News Update 3: On January 13, the Supreme Court in a vote of 6 to 3 granted a temporary stay of the ETS, pending a court decision on the merits of the OSHA rule itself.

News Update 4: Please refer to the Supreme Court grants stay of OSHA COVID-19 ETS article for more updates.