As previously reported here an expedited review of OSHA’s November 5, 2021, Emergency Temporary Standard (ETS) by the Fifth Circuit Court of Appeals reaffirmed an initial stay Order preventing OSHA from enforcing the ETS as planned starting January 2022.

Since winning the Appellate Court lottery the Sixth Circuit has been very busy setting a briefing schedule and ruling on various motions filed by OSHA: motion to dissolve the current stay (responses and replies due December 10, 2021), motion to expedite the court’s briefing schedule (denied) and a petition to transfer the case back to the Fifth Circuit (denied). Given the Court’s current briefing schedule it is likely any decision rendered by the Court will delay ETS original January 4, 2022 deadlines. It is also likely that any decision regarding the ETS will be subject to further appeal thereby delaying existing deadlines even further.

Western Growers will continue to monitor developments and provide insights and guidance as litigation on the ETS progresses in the Sixth Circuit.  Members with questions about OSHA ETS or Cal/OSHA ETS should contact Western Growers.