Sixth Circuit Court of Appeals Reinstates OSHA's Emergency Temporary Standard (ETS)

But the Fight is Not Over

December 22, 2021


On December 17, in a 2-1 decision, the Sixth Circuit Court of Appeals lifted the stay on OSHA’s Emergency Temporary Standard (ETS) requiring private employers with 100 or more employees to require all employees to be vaccinated against COVID-19 or undergo weekly COVID-19 testing. In a 57-page opinion, the Court’s majority reasoned that the petitioners are unlikely to succeed on the merits of their claim that OSHA exceeded its authority by implementing the ETS, that the alleged injuries caused by the ETS are “entirely speculative,” and that the risk of harm to the public if implementation were further delayed is high. The Court’s opinion is available here. An appeal to the U.S. Supreme Court was filed the same evening.

This means the OSHA vaccine-or-test rule is now back in effect, but the implementation deadline is delayed. On Saturday, December 18, OSHA announced that in order to give covered employers time to comply with the ETS, OSHA will not issue citations for non-compliance before January 10, 2022. OSHA also announced that it will not issue citations for non-compliance with the weekly testing requirement before February 9, 2022. As initially implemented, the ETS specified a compliance deadline of January 4, 2022.

In addition, OSHA’s ETS also serves as a proposed COVID-19 vaccine-or- test permanent standard, which triggered a required comment period that was extended to January 19, 2022. When the comment period is over, and unless the U.S. Supreme Court rules otherwise, OSHA will issue its vaccination or test rule as a permanent standard. See OSHA's explanation here.

In light of these developments, employers should move toward compliance with the OSHA ETS, pending the possibility that the U.S. Supreme Court overrules the Sixth Circuit’s recent decision. Questions concerning compliance with the weekly testing requirement are especially likely to arise. Please contact a member of our Labor & Employment Group if you have questions. 


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