On Dec. 17, a three-judge panel of the 6th Circuit Court of Appeals reversed a previous decision by the 5th Circuit Court of Appeals that had blocked implementation of the Occupational Safety and Health Administration Emergency Temporary Standard regarding vaccines/testing applicable to employers with 100 or more employees.
As a result of this decision, OSHA posted the following notice on its website indicating the agency is resuming implementation of the ETS with new compliance deadlines of Jan. 10, 2022 (originally Dec. 5 for certain requirements) and Feb. 9, 2022 (originally Jan. 4, 2022, for the full vaccine/testing requirement):
“OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.
“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.”
The notice also can be viewed on OSHA’s ETS website.
View more information and NRCA’s summary of the ETS.
The Dec. 17 6th Circuit decision has been appealed by the plaintiffs, and the case is likely to go to the U.S. Supreme Court. Timing for further consideration by the courts is unclear at this time but likely will be expedited. Until further legal action, the ETS now is back in force with the new compliance deadlines as indicated in OSHA’s notice.
NRCA will provide more information as it becomes available.
