Federal Appeals Court Puts OSHA’s COVID Mandates Back on Track

What happened: A three-judge panel of the 6th Circuit U.S. Court of Appeals Dec. 17 cleared the way for the Occupational Safety & Health Administration (OSHA) to enforce its new COVID-related emergency temporary standard (ETS). In a 2-1 decision, the court dissolved a short-term stay that had prevented the agency from enforcing the ETS, a mandate for employers of 100 or more to require COVID vaccinations or weekly testing and masking for all personnel. Meanwhile, litigation against the ETS continues, involving a variety of plaintiffs, including ARTBA.

Why it matters: OSHA is now preparing to enforce the ETS, with new deadlines for employer compliance. According to the agency, it will not issue citations for noncompliance with any requirements of the ETS before Jan. 10, 2022, and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, 2022, so long as an employer is exercising ‘reasonable, good faith efforts.’

What’s next: OSHA’s enforcement of the ETS is still subject to further court action. Several groups have filed emergency motions with the U.S. Supreme Court to block further implementation of the ETS for the time being. It is expected that the court will take at least two more weeks to rule after considering those arguments and the response from the federal government. Meanwhile, ARTBA and other plaintiffs continue to challenge the legal basis for the ETS itself through litigation in the 6th Circuit.

While the legal outlook remains uncertain, ARTBA recommends that affected members consult with legal counsel and other appropriate professionals in preparation for complying with the ETS. ARTBA members may also view a recent webinar on this topic presented by Phillip Russell of Ogletree Deakins.

ARTBA will report on new developments, including the progress of our own litigation, as they occur.