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Sixth Circuit Lifts Stay on OSHA's ETS Requiring COVID-19 Vaccination or Testing; OSHA Issues New Compliance Deadlines

December 20, 2021

On December 17, 2021, a divided Sixth Circuit Court panel issued an opinion dissolving the Fifth Circuit's stay of the Emergency Temporary Standard (ETS) on COVID-19 Vaccination and Testing issued by the Occupational Safety and Health Administration (OSHA). The majority (2-1) decision explained:

In light of the Sixth Circuit's decision, OSHA has updated its website, indicating that OSHA's implementation of the ETS is resumed. However, to account for the uncertainty created by the stay and provide employers with sufficient time to come into compliance, OSHA has extended the time for covered employers to comply with the ETS. Specifically, OSHA states that it will not issue any citations for noncompliance before January 10 and will not issue citations for noncompliance with the ETS' weekly COVID-19 testing requirement for unvaccinated workers before February 9, "so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard."

Within a few hours of the Sixth Circuit ruling, a group of petitioners filed in the Supreme Court an Emergency Application for Immediate Stay of Agency Action Pending Disposition of Petition for Review. The application seeks an immediate stay of the ETS or the application to be treated as both a motion to stay and a petition for writ of certiorari to the Supreme Court. The application, which also asks for expedited review, was referred to United States Supreme Court Justice Brett Kavanaugh, who is assigned to review petitions from the Sixth Circuit, and who can act on the application alone or refer it to the full court for consideration.

Miller Canfield will continue to monitor new developments concerning the ETS. If you have any questions about these developments or how they may impact your workplace, please contact the authors of this alert or your Miller Canfield attorney.

This information is based on the facts and guidance available at the time of publication and may change as the agency receives comments and/or updates its guidance.