Stay on OSHA ETS Lifted

The stay on OSHA's ETS was lifted by a panel of judges in the Sixth Circuit Court of Appeals.

The ETS establishes binding requirements to protect unvaccinated employees of large employers (100 or more employees) from the risk of contracting COVID-19 in the workplace.

"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," OSHA wrote on its website. "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 non-compliance with any requirements of the ETS before Jan. 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."

"Fundamentally, the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end and cost hundreds of thousands of workers their jobs," Circuit Judge Jane B. Stranch wrote. "In a conservative estimate, OSHA finds that the ETS will 'save over 6,500 worker lives and prevent over 250,000 hospitalizations' in just six months. A stay would risk compromising these numbers, indisputably a significant injury to the public. The harm to the Government and the public interest outweighs any irreparable injury to the individual petitioners who may be subject to a vaccination policy."

Industry response

The National Association of Home Builders sent a letter in early December urging OSHA to delay enforcement of the standard should the stay get dissolved.

Associated Builders and Contractors issued the following statement announcing its appeal to the U.S. Supreme Court to stay the U.S. Department of Labor’s Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard.

“ABC is deeply disappointed that the 6th Circuit Court lifted the 5th Circuit’s stay of the U.S. Department of Labor’s Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard, which applies to employers with 100 or more employees," said Ben Brubeck, ABC VP of regulatory, labor and state affairs. “ABC filed an emergency appeal to the U.S. Supreme Court to stay the ETS because it creates excessive compliance costs and regulatory burdens for job creators and threatens the national economy at a time when it is already contending with rising materials prices, supply chain disruptions and workforce shortages. ABC continues to encourage vaccination but rejects the damaging regulatory overreach that exceeds the Department of Labor’s statutory authority.”