On the evening of December 17, 2021, the Sixth Circuit issued its highly anticipated decision on whether OSHA’s ETS would remain intact, be further delayed, or modified in some other alternative. In a surprise decision to many, the historically conservative Sixth Circuit dissolved the stay. The Sixth Circuit noted “the costs of delaying the implementation of the ETS are comparatively high. … [t]he harm to the Government and the public interest outweighs any irreparable injury to the individual Petitioners who may be subject to a vaccination policy.” Accordingly, the Sixth Circuit dissolved the stay and did not grant relief or any additional time to employers for compliance. As a result, the vaccination, weekly testing, and face covering provisions, for the applicable large employers, are set to go into effect.
However, OSHA itself, on December 18, 2021, posted new information on its website for the ETS deadlines. OSHA is granting two important extensions for compliance with the ETS. They are:
- January 10, 2022 – OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10th, and
- February 9, 2022 – OSHA will not issue citations for noncompliance with the standard’s testing requirements before February 9th.
OSHA also reports that these extensions only apply so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. See below for OSHA’s post and a link to OSHA’s website.
Given this news, your organization may be considering its next steps and plans to further your compliance efforts. Parties opposing the ETS likely will seek an appeal and pursue a review from the Supreme Court of the United States. This may mean the legal challenges will not end. However, the Sixth Circuit’s ruling is an important outcome for OSHA and gives validation to the legal authority OSHA had for issuing the ETS in the first place. This means the ETS and updated deadlines will likely hold, and applicable large employers will have to comply. Organizations face heightened risks now (OSHA’s own enforcement and whistleblower actions) if they do not take immediate action to comply with the ETS.
The HB Team will continue to monitor for information OSHA releases and any possible appeals. Please contact us should you have any questions and/or if you want to revisit or need additional copies of the materials the HB Team circulated in conjunction with our November 16, 2022 webinar.
https://www.osha.gov/coronavirus/ets2#litigation
Please note that the information contained in this posting is designed to provide general awareness in regard to the subject matter covered. It is not provided as legal, medical, or tax advice, nor is it intended to address all concerns in your workplace or for public health. No representation is made as to the sufficiency for your specific company’s needs. This post should be reviewed by your legal counsel or tax consultant before use.
