APPELLATE COURT LIFTS STAY ON OSHA ETS

On Friday, December 17, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of OSHA’s Emergency Temporary Standard (ETS) for employers with 100 or more employees.  OSHA is now allowed to proceed with the implementation and enforcement of the rule originally issued on November 5, 2021.

OSHA will allow more time for covered employers to comply with the ETS. OSHA’s website indicates the agency will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022, and will not issue citations for noncompliance with testing requirements before February 9, 2022, so long as an employer is exercising “reasonable, good faith efforts” to come into compliance with the ETS.

If you are looking for more information on the ETS, it is encouraged to visit the FAQ portion of OSHA’s website. Several important topics are covered, including, but not limited to, face covering requirements, testing requirements, the requirement for a written policy, collecting proof of vaccination, record keeping, removal of COVID-19 positive or untested employees from the workplace, and employee communications.

What does the ruling mean? As mentioned, lifting the stay allows OSHA to move forward with implementation while litigation continues. The courts have not yet decided the case on the merits, which include arguments over whether OSHA exceeded its authority and whether the ETS overrides state or local laws due to federal preemption. An appeal to the U.S. Supreme Court is also part of the equation as several petitioners have already filed an appeal challenging the Sixth Circuit’s decision to lift the stay. Despite this, covered employers need to move forward as if the ETS will withstand legal scrutiny until such a decision is made.