Developments immediately before the holiday break have many employers scrambling as the OSHA ETS has seemingly come back to life. The Sixth Circuit, in a 2-1 decision by a 3-member panel, dissolved the temporary stay previously issued by the Fifth Circuit Court of Appeals halting enforcement of the OSHA ETS. OSHA was waiting for the ruling from the Sixth Circuit, and had agreed not to enforce the ETS “pending future developments in the litigation.” The question now: because we have a “development in the litigation” that allows OSHA to enforce its ETS, will it do so? And, when? These are especially troubling questions in light of the ETS’ January 4 deadline for full implementation.
Before you panic, just before midnight on Friday, OSHA issued guidance on these questions through its website: “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.”
So what happened? Late yesterday afternoon, on Friday, December 17, 2021, the Sixth Circuit Court of Appeals issued its long-awaited opinion addressing the stay of the Occupational Safety and Health Administration’s emergency temporary standard on COVID-19 (ETS). The Opinion comes almost one month after the...
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