UPDATED: December 21, 2021
A three-judge panel of the Sixth Circuit Court of Appeals has ruled 2-1 to reinstate OSHA’s Emergency Temporary Standard (ETS) requiring employees at private employers with 100 or more workers be vaccinated or else tested weekly for COVID-19 starting January 4, 2022.
The ETS was published on November 5th and immediately faced legal challenges from across the country. On November 6th, the Fifth Circuit Court of Appeals issued a stay preventing the ETS from taking effect. On November 12th, the Fifth Circuit called the ETS unlawful and likely unconstitutional in its opinion affirming the stay. Legal challenges were then consolidated and sent to the Sixth Circuit to issue a decision after it won a multi-circuit lottery.
The Sixth Circuit’s decision has already been appealed to the Supreme Court, which will make a final determination on the legality of the ETS. Employers should continue to monitor the situation as the ETS goes before the Supreme Court, though it is prudent to begin planning how to implement the ETS requirements. In the meantime, OSHA has stated that it will not issue citations for non-compliance with any requirements of the ETS before January 10, 2022, and will not issue citations for noncompliance with the ETS’s testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the ETS.
For additional information on this or any related topic, please contact any of the KDDK labor and employment law professionals.
