In a decision issued Friday night, the majority of a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit upheld the Emergency Temporary Standard on COVID-19 vaccination that was issued on November 5 and has been stayed since November 6.

Members of the panel who upheld the ETS were Judge Jane Branstetter Stranch, an Obama appointee, who wrote the opinion; and Judge Julie Smith Gibbons, a George W. Bush appointee. Judge Joan Larsen, a Trump appointee, dissented.

The stay is now dissolved, and the ETS can take effect. The original compliance deadlines were December 6 (for almost all requirements including collecting employee proof of vaccination and issuing a vaccination policy) and January 4 (for employers to start requiring unvaccinated employees to submit to weekly testing).

In an announcement posted on its website last night, OSHA said that it would not issue citations for noncompliance until January 10 for the former December 6 requirements and not until February 9 for the weekly testing requirement, as long as employers are making "reasonable, good-faith efforts to come into compliance." Here is the full announcement:

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.

Opponents of the ETS have already asked the U.S. Supreme Court to stay the Sixth Circuit ruling and grant certiorari.

We will keep you posted.

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