On Again; Sixth Circuit Lifts Stay on OSHA COVID-19 ETS  

by Ramon Bissmeyer, James Hermon

Published: December, 2021

Late Friday, the United States Court of Appeals for the Sixth Circuit issued an Order and Opinion lifting the stay that previously had been entered by the United States Court of Appeals for the Fifth Circuit which had prevented the OSHA COVID-19 emergency technical standard (the “ETS”) that applied to employers with 100 or more employees from going into effect. This reversal puts many employers in the position of having to immediately restart compliance efforts that may have been paused during the pendency of the stay.


What Employers Must Do

Shortly after the Sixth Circuit issued its ruling, OSHA updated the guidance on its website to clarify the obligations of employers who must comply with the ETS. It wrote:


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.


So, as matters currently stand, and at least for private sector employers covered by the ETS in states without a state counterpart to OSHA, these employers must, by January 10, comply with the requirements of the standard except having a mandatory vaccination or testing program in place. That mandatory vaccination or testing program must, however, be in place by February 9. Furthermore, while the deadline for being in compliance is January 10, it is clear that OSHA may take enforcement action against employers that are not making good-faith efforts to come into compliance with the standard before that date. The standard is in place; OSHA is simply granting employers some additional time to get into compliance. Waiting until January 10 to begin working towards compliance will not be acceptable. An extensive discussion of what employers must do under the ETS can be found here.


Because of the speed with which the Fifth Circuit issued its injunction, state OSHA plans have not indicated whether they will be following the ETS or issuing their own standards that are at least as restrictive. Similarly, no state OSHA plans have issued guidance regarding the timing of their enforcement actions. How OSHA will accommodate these states to allow them time to comply will likely be clarified soon. This may marginally delay the start date for employers in these states, but in those states, it is also likely that the ETS will cover most public employers. Employers in states with their own OSHA plans should monitor communications from those agencies carefully to determine what requirements those states impose, as well the timeline for enforcement they may issue.


What Comes Next

The battle is not over yet. Immediately after the Sixth Circuit entered its decision, at least three petitions for an immediate stay and/or review were filed with the United States Supreme Court. It is possible that the Supreme Court will take up those petitions to resolve this issue, and may enter a further stay in the meantime. Dykema will continue to monitor this situation and issue additional alerts if matters change.


If you have further questions regarding this latest order or the OSHA ETS generally, contact Ray Bissmeyer, Jim Hermon, or your Dykema relationship attorney.


 

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