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Sixth Circuit Lifts Stay on OSHA Emergency Temporary Standard

On Friday evening, the Sixth Circuit lifted the stay on OSHA’s Emergency Temporary Standard (ETS).  The ETS states that any employer with more than 100 employees must require its employees to either show proof of a COVID vaccination or submit to weekly testing and mask at all times when indoors.  In the absence of a Supreme Court ruling to the contrary, the ETS will go into effect, and employers will be required to adhere to its standards.

OSHA has stated the following regarding compliance: “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.” Therefore, employers will have until January 10, 2022 to comply with all requirements of the ETS, except for the weekly testing requirement, which will not be enforced until February 9, 2022.

The Sixth Circuit’s ruling has been appealed to the Supreme Court.  It is expected that the Supreme Court will take this matter under consideration and expedite arguments.  However, employers should continue to prepare for the ETS.  If employers have not developed an ETS compliant policy, they should do so now.  Employers should also begin to collect employees’ vaccination statuses and put together a testing protocol.  Employers still have time to begin testing, and it is expected that the Supreme Court will weigh in before the testing requirements go into effect.

The attorneys at Gibbel Kraybill & Hess LLP are available to assist in developing policies and protocols and to advise generally on compliance with ETS requirements.

This update was prepared by Attorney Jeff Worley. This update does not constitute legal advice and has been prepared for informational purposes only. Please contact us directly with questions about your specific situation.