Appeals Court Lifts Stay on OSHA COVID-19 Emergency Temporary Standard (ETS)

Dear IDFA Members,

Yesterday, the U.S. Court of Appeals for the 6^th Circuit lifted the stay of the OSHA Covid-19 Emergency Temporary Standard (ETS), making it effective immediately even as other court proceedings continue. An appeal has already been filed, asking the U.S. Supreme Court to review the 6^th Circuit’s decision and reinstate the stay pending ongoing litigation. The parties seeking the appeal—including two dozen Republic-led states as well as private businesses and conservative legal groups—have asked the Supreme Court to make its decision regarding the stay by December 20, but the Supreme Court may take longer to render a decision. Unless the Supreme Court reinstates the stay, the ETS is now in effect as the 6^th Circuit considers the merits of the ETS and until the Supreme Court rules.

With the lifting of the stay, OSHA issued Guidance to employers, stating that OSHA will exercise “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.” IDFA members with facilities in states with approved state OSHA plans should consult with state regulators about the state specific enforcement timelines.

IDFA will continue to monitor the litigation and promptly provide new information as it becomes available.

To read the original analysis of the OSHA ETS published by IDFA on Nov. 4th, please see my IDFA Blog. For additional questions, please reach out directly to me at dquist@idfa.org.