December 6, 2021

Volume XI, Number 340


December 06, 2021

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Given Deadlines Set by Sixth Circuit, ETS Likely Stayed Until At Least December 10, 2021

Earlier this month, the Occupational Safety and Health Administration (“OSHA”) issued its “COVID-19 Vaccination and Testing; Emergency Temporary Standard” (the “ETS”) requiring employers of 100 or more employees to implement policies requiring employee vaccination or enhanced safety measures for unvaccinated employees (including wearing face coverings and weekly COVID-19 testing). Our alert on the ETS is hereThe ETS was subject to over 30 petitions for review in the federal circuit courts and was quickly stayed by the United States Court of Appeals for the Fifth Circuit.

Although the petitions for review were consolidated before the United States Court of Appeals for the Sixth Circuit, the Fifth Circuit’s stay remains in place. While OSHA has publically stated that it will comply with the stay, its position has been – and continues to be – that employers should prepare to comply with the ETS and that OSHA will succeed in litigation challenging the ETS. Yesterday, OSHA filed an emergency motion to immediately lift the stay.

With the stay in place, covered employers have been in the difficult position of trying to determine how much preparation to do to comply with the ETS’s requirements, many of which are scheduled to be effective on December 6, 2021. The question has been whether the stay will continue beyond the initial deadlines and, if not, whether deadlines will be extended to account for the period during which the ETS was stayed.

The deadlines set out in the Sixth Circuit’s Scheduling Order, which is available here, provide some insight into the timing of the requirements of the ETS.  The Scheduling Order sets the following briefing deadlines: 

  • Tuesday, November 30, 2021 – motions to join OSHA’s emergency motion or to modify, revoke, or extend the stay.

  • Tuesday, December 7, 2021 – responses to motions regarding the stay.

  • Friday, December 10, 2021 – replies to responsive motions.

Given these deadlines, it is likely that the ETS will continue to be stayed until at least December 10th (past the December 6, 2021 deadline) while the Sixth Circuit considers briefing.  However, it is possible that, before December 10th, the Sixth Circuit lifts the stay. If the stay is lifted, the ETS requirements could become effective on the date of the court’s order or on a later date set by the Sixth Circuit.

While the briefing schedule does not provide definitive answers to employers on the potential deadlines for ETS compliance, it suggests that the ETS’s December 6, 2021, deadlines may be extended for at least a few days while the Sixth Circuit considers briefing.  

© 2021 Bracewell LLPNational Law Review, Volume XI, Number 329

About this Author

Amber K Dodds, Labor and Employment Attorney, Bracewell Law

Amber Dodds represents employers in labor and employment issues, including matters related to wages, wrongful termination, discrimination, occupational safety, and employee benefits disputes.

Prior to law school, Amber worked with large corporations to procure the necessary employment-based visa documentation for high-level individuals and their families relocating to Central and South America. Managing the immigration process included obtaining birth certificates, marriage licenses, diplomas, police records, and employment records while...

Amy Karff Halevy, Employment, Attorney, Bracewell law firm

Amy Halevy counsels and represents employers in all areas of employment law. She guides her business clients in the preparation and application of employment policies and procedures. Amy also provides valued advice in assisting with complex and high level company investigations when there are concerns of employee misconduct or in other areas related to the employment relationship. She has successfully represented employers for more than 25 years in matters related to discrimination, harassment, and other employment-related claims.

Amy has...