On Friday, pursuant to 28 U.S.C. § 2112(a)(4), the US Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay (reported on here) of OSHA’s Emergency Temporary Standard that requires employees be vaccinated or wear a protective face covering and take weekly COVID-19 tests. In response, OSHA posted an update on its website indicating that it will defer issuing citations to companies for noncompliance with the testing and other requirements of the ETS, as follows (emphasis added):
Litigation Update
OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.
To account for any uncertainty created by the stay, OSHA is exercising enforcement 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.
Weighing the respective alleged harms associated with the ETS to the public interest and individual petitioners who may be subject to a vaccination policy, the court concluded that the factors regarding irreparable injury weigh in favor of the federal government and the public interest.
See these articles from The Hill and the WSJ.