On November 12, 2021, the Fifth Circuit Court of Appeals issued a temporary stay of OSHA’s enforcement of the ETS that that required certain employers to, among other things, require employees to provide proof of vaccination or a negative test.  Thereafter, the Judicial Panel on Multidistrict Litigation consolidated the various circuit court challenges to the ETS and ultimately assigned the consolidated case to the Sixth Circuit Court of Appeals.  Thereafter, OSHA announced that it was suspending implementation and enforcement of the ETS. 

On December 17, 2021, a three-judge panel lifted the Fifth Circuit Court of Appeals’ Order staying enforcement of the OSHA ETS.  In the 2-1 decision, Judge Jane Stanch approved of OSHA’s ability to “respond to dangers as they evolve.”  The Court went on to note that “it is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace.”  The case will now go to the United States Supreme Court.

While the Supreme Court could invalidate or stay enforcement of the ETS, employers should begin making plans to comply with the ETS.  Fortunately, OSHA announced that it “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, assuming employers make “good faith efforts to come into compliance,” employers will have until February 9, 2022 to require employees to be fully vaccinated or provide weekly testing.  Employers will have until January 10, 2022 to comply with the other requirements of the ETS, such as creating an appropriate written policy.