The stay on OSHA’s COVID-19 vaccination emergency temporary standard (ETS) will likely cause some of the emergency standard’s compliance deadlines to be pushed back to at least Dec. 10, 2021.
OSHA’s COVID-19 vaccination ETS was stayed in early November by the Court of Appeals for the Fifth Circuit after more than 30 petitions for review were filed against it, and upcoming court dates point toward the stay affecting some of the standard’s deadlines.
All of those petitions for review were consolidated at the Court of Appeals for the Sixth Circuit after that court won a lottery determining which court would preside over the matter.
Motion to lift stay
OSHA stated it will comply with the stay but filed an emergency motion Nov. 24 to immediately lift it, according to The National Law Review.
Despite the stay, the agency’s position remains firm that employers should prepare to comply with the ETS because it will be the winner of the upcoming court battle.
Many of the ETS requirement deadlines were supposed to take effect Dec. 6, 2021, but questions regarding whether or not the stay will extend beyond that date or if the deadlines will get an extension have not been answered.
Court dates offer clue
The court’s Scheduling Order gives some insight into this, The National Law Review states, with these briefing deadlines being the key:
- Nov. 30. This is when motions are due to join OSHA’s emergency motion to modify, revoke or extend the stay.
- Dec. 7. Responses to the motions regarding the stay are scheduled for this date.
- Dec. 10. Replies to the Dec. 7 responses are due.
Dec. 10 or later, if stay is lifted
With those dates in mind, it’s likely the ETS will be stayed until Dec. 10, which is past the Dec. 6 deadlines outlined in the ETS.
If the Sixth Circuit lifts the stay, the ETS deadlines could become effective on the date of that order or on a later date to be determined by the court.