In a surprising turn of events late Dec. 17, the U.S. Court of Appeals for the Sixth Circuit dissolved the nationwide stay of the Occupational Safety & Health Administration (OSHA) Vaccination, Testing and Face Coverings Emergency Temporary Standard (ETS) that had been issued by the Fifth Circuit in November.

The Department of Labor (DOL) and OSHA has issued a statement saying the agency would move forward with implementation and enforcement of the ETS, but also provided some enforcement relief for companies able to demonstrate good faith efforts to comply:

“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 Jan. 10 and 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. OSHA will work closely with the regulated community to provide compliance assistance.”   

The ink had not dried on the Sixth Circuit’s decision before several parties filed a joint emergency application and motion with the Supreme Court requesting the court to, once again, stay the ETS.

Republican state attorney generals also worked into the wee hours to prepare and file a second stay application with the Supreme Court.

Gary Huddleston, Director of Feed Manufacturing and Regulatory Affairs for the American Feed Industry Association (AFIA) said, it will now be up to the Supreme Court to decide OSHA’s ability to enforce the ETS. He said while the matter is in a period of uncertainty, it is recommended that companies move toward compliance with the ETS, building the administrative process to support a vaccine-or-test regiment at workplaces and developing the written program as required by the ETS.

The Supreme Court is expected to make a decision on whether to take the case in the next week or so. There is some initial speculation that the case may well be left with the lower courts.

Among those things that employers will need to figure out is who will be responsible for paying for the cost of testing non-vaccinated employees. The average cost of such testing could run as high as $45 to $75 per employee per test. The requirement is for employers with 100 or more employees to either ensure each of their workers is fully vaccinated or tests for COVID-19 on at least a weekly basis. The OSHA rule will also require that these employers provide paid-time for employees to get vaccinated, and ensure all unvaccinated workers wear a face mask in the workplace.

OSHA has stated that the new rule preempts any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks or testing.