Late Friday, the Sixth Circuit Court of Appeals issued a decision to dissolve the stay that the Fifth Circuit had placed on OSHA’s Emergency Temporary Standard (ETS) and allow the ETS to take effect.
As we’ve previously discussed, the ETS requires, among other things, that private employers with 100 or more employees implement a written policy that either mandates vaccination or that requires unvaccinated employees to undergo weekly COVID-19 testing. Unlike the Fifth Circuit, which had found that the ETS was likely to cause “irreparable harm” to employers and employees alike, the Sixth Circuit, in a 2-1 decision, rejected its sister court’s claims as “entirely speculative” and reasoned that any harms imposed by the ETS would be outweighed by the government’s interest in regulating public health.
Multiple emergency requests that the stay be reinstated have already been filed with the Supreme Court, which has given the government until December 30 to respond to these requests.
Shortly after the Sixth Circuit released its decision, OSHA announced that it will be delaying enforcement of the ETS in order to give covered employers more time to comply. Under these newly revised deadlines, OSHA will not begin issuing citations for failure to comply with the ETS until January 10, 2022. OSHA also announced that it will not issue citations for noncompliance with the ETS’s COVID-19 testing requirements until February 9, 2022, so long as an employer is “exercising reasonable, good faith efforts to come into compliance with the standard.”
In light of this news, covered employers should resume the process of developing and implementing the necessary policies and other requirements of the ETS. Please do not hesitate to reach out to any of K|W|W’s professionals with any questions you may have regarding this ETS. Your workforce is our priority.