The Sixth Circuit Court of Appeals lifted a stay put in place by the Fifth Circuit that prevented OSHA from enforcing its Emergency Temporary Standard (“ETS”). This means OSHA may now move forward with the  vaccine, testing and other requirements for employers with 100 or more employees while challenges to the rule are litigated simultaneously. Because of the uncertainty due to litigation, OSHA has extended the compliance deadline to January 10 and, in a statement on its website, said that it “will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.” The rule’s challengers immediately petitioned the United States Supreme Court to re-impose a stay. The high court is expected to establish a briefing schedule on that request this week.

Meanwhile, the federal contractor vaccine mandate remains blocked nationwide pending a court decision on the merits. The Centers for Medicare & Medicaid Services (“CMS”) vaccine mandate for healthcare workers remains blocked in 25 states, though CMS has suspended enforcement of the rule everywhere pending the outcome of litigation.

Employers covered by the OSHA ETS should plan and finalize their policies so that they can be implemented by January 10.