Late Friday, December 17, 2021, the 6th U.S. Circuit Court of Appeals granted the government’s motion to lift the stay on the OSHA COVID-19 mandate imposed by the Fifth Circuit on November 6, 2021. This ruling allows OSHA’s COVID-19 emergency temporary standard (ETS) to go into effect.

In response, OSHA posted the following on its website:

To account for any uncertainty caused by the stay, OSHA is exercising discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA 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. OSHA will work closely with the regulated community to provide compliance assistance.

Multiple appeals have been filed with the U.S. Supreme Court seeking to reinstate the stay.

Given these developments, employers should promptly resume and complete efforts to comply with the OSHA ETS by the new compliance dates. If the Supreme Court reinstates the stay, then the ETS will again be on hold. We are continuing to monitor this evolving situation.

If you have any questions regarding these developments, please contact the authors of this Alert, Rachel Ullrich, [email protected], a partner in our Dallas office, or Rick Warren, [email protected], a partner in our Atlanta office, both members of FordHarrison’s Coronavirus Taskforce. Of course, you can also contact the FordHarrison attorney with whom you usually work.