Here We Go Again: Sixth Circuit Lifts Stay of OSHA COVID-19 ETS for Employers With 100 or More Employees


On Friday December 17, 2021, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit lifted the Fifth Circuit’s stay that had prevented the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) on COVID-19 from being implemented for employers with 100 or more employees. The ETS is now able to move forward absent issuance of a stay from the U.S. Supreme Court. OSHA has issued new compliance dates for employers.

The Sixth Circuit’s ruling was issued by a 2-1 vote, with Judges Julia Gibbons and Jane Stranch ruling in favor of OSHA’s and Judge Joan Larsen dissenting.

Several petitioners in the case have already filed emergency appeals to the U.S. Supreme Court with requests for the stay to be reinstituted, pending a hearing on the matter. In such emergency appeals, the requests go directly to the justice assigned to the applicable Circuit, which in this instance will be Justice Brett Kavanaugh. The assigned justice has the discretion to decide the request on his or her own or submit the request to the full court to consider. At this time, it is unclear when this decision will be made or if the Supreme Court will hear the case.

The key points from the ETS along with the new compliance dates are summarized below:

Compliance

Exemptions / Variations

Employees who have previously contracted COVID-19 are not exempt from the vaccination, testing, or masking requirements.

For states with state-administered OSHA plans, such as Michigan, the ETS required the state OSHA agency to adopt the federal ETS standard or measures at least as protective as the federal ETS within 30 days of the ETS’s issuance. At this point, Michigan has not yet issued its plan, but this would be expected to occur within the next 30 days. It remains to be seen whether MIOSHA, Michigan’s own worker safety agency, will modify the ETS and trigger additional requirements for Michigan employers.


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National Law Review, Volume XI, Number 354