Sixth Circuit Lifts OSHA ETS Stay

By Cotney Attorneys & Consultants

Late last Friday, Dec. 17, the U.S. Court of Appeals for the 6th Circuit announced it was dissolving the stay of the Occupational Safety and Health Administration vaccination and testing Emergency Temporary Standard. While perhaps unexpected, the recent rise of the Omicron variant may have changed the underlying policy perspectives. Regardless of the reason, the Department of Labor has indicated it fully intends for OSHA to “once again implement this vital workplace health standard.” In line with that position, OSHA has indicated it will provide employers with time to come into compliance. Specifically, OSHA does not intend to issue citations for noncompliance with any provision of the ETS before Jan. 10, 2022, and it will not issue citations for noncompliance with the ETS’s testing requirements before Feb. 9, 2022 (so long as the employer can display it is exercising reasonable, good faith efforts to come into compliance with the new ETS).

Since the 6th Circuit decision, several stay applications have been submitted to the U.S. Supreme Court; however, the government’s reply is not due until Dec. 30, leaving little time between then and OSHA’s designated Jan. 10, 2022, enforcement date.

As such, instead of taking a wait-and-see approach, employers are urged to prepare for the enforcement of OSHA’s ETS by getting their policies, documentation and ledgers in place in anticipation of the standard kicking into gear Jan. 10, 2022.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.


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