UPDATE- On 1/13, the Supreme Court ruled 6-3 to temporarily block enforcement of OSHA’s COVID-19 emergency temporary standard. Click here for more on the ruling.

Late in the evening of Dec. 17, a three-judge panel from the Sixth Circuit issued a decision “dissolving” the Fifth Circuit’s stay order that was preventing OSHA from enforcing its Emergency Temporary Standard for COVID-19. OSHA’s ETS requires all workers of all employers with 100+ employees to either be fully vaccinated or submit to weekly COVID-19 testing. OSHA announced its going to “restart” compliance on Jan. 10 (Feb.9 is the compliance date for vaccination or testing). Here’s the full statement from OSHA:

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.

https://www.osha.gov/coronavirus/ets2

The plaintiffs in the Sixth Circuit case (the state of Ohio among others) have already petitioned the United States Supreme Court to block the rule, and we expect they will quickly rule on the petition.

Bottom Line

The Sixth Circuit’s ruling will not be the final word on the OSHA ETS Rule, because it is on the way to the Supreme Court. However, now that OSHA has weighed in with a new deadline, if the Supreme Court denies the petition, employers with over 100 employees must be able to demonstrate that they are “exercising reasonable, good faith efforts to come into compliance” by Monday, January 10, 2022 for the bulk of the OSHA ETS Rule requirements (and Wednesday, February 9, 2022 for the vaccination or testing requirement).