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December 23, 2021

Sixth Circuit Lifts OSHA ETS Stay

On December 17, 2021 the U.S. Court of Appeals for the Sixth Circuit lifted its stay of OSHA’s Emergency Temporary Standards (ETS). This means that all employers with 100 or more employees will be subject to the new federal OSHA ETS protocols.

New compliance deadlines reflecting OSHA’s discretion in compliance enforcement have been set giving impacted employers exercising reasonable, good faith efforts time to initiate the new standards. This means so long as employers are exercising reasonable, good faith efforts to comply with the ETS, OSHA will not be issuing citations for noncompliance with any procedural ETS mandates until January 10, 2022 and will not issue citations for failing to comply with testing requirements until February 9, 2022.

While the lifting of the stay has prompted the filing of petitions for review by the U.S. Supreme Court, there is no indication as to whether the high Court will elect to review the Sixth Circuit’s decision. OSHA has expressly stated that the ETS preempts conflicting state or local laws. Nonetheless, the issues raised by petitioners to the Sixth Circuit have yet to be decided; this includes whether the ETS in fact preempts state or local laws restricting or impacting the employer’s ability to mandate vaccinations or testing requirements.  For a discussion on how the Federal ETS affects California employers, see our article The Impacts of Federal ETS on State ETS Mandates.

Following federal ETS requirements, impacted employers should begin (or resume) developing vaccination/testing policies and collecting proof of vaccination data. Members with questions about the impacts of the federal OSHA ETS should contact Western Growers.