What Happened? I Thought This Was Gone!

On Friday, December 17, the United States Court of Appeals for the Sixth Circuit lifted the nationwide Stay that had been previously put in place by the United States Court of Appeals for the Fifth Circuit. In lifting the Stay, the Sixth Circuit has allowed the enforcement of the Emergency Temporary Standard (ETS) to move forward. This was an unexpected turn of events, but one that was very much welcomed by OSHA and the Biden Administration.

Now, that the Stay has been lifted, Federal OSHA has taken the view that the original deadlines are effective (i.e., December 6, 2021, for all requirements except testing for unvaccinated employees, which would begin on January 4, 2022). But, in recognition of the delay, OSHA issued a press release stating that it will use “enforcement discretion” “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard”. This means that no citations will be issued for violations and OSHA will not begin enforcement until January 10, 2022, for all requirements except testing for unvaccinated employees, and February 9, 2022, for the testing requirement.