Final briefs on the Occupational Safety and Health Administration’s (OSHA) November 23 motion to the 6th Circuit to appeal the 5th Circuit’s order, halting the enforcement of OSHA’s Emergency Temporary Standard (ETS) are due December 10. It is not expected that a ruling will be cast before that date. The court placed the original December 6 compliance date on hold until the 6th Circuit rules on OSHA’s motion. While the standard’s future is uncertain, Far West Equipment Dealers Association (FWEDA) recommends that dealers prepare to comply with OSHA’s ETS in anticipation of the court’s ruling.

OSHA’s ETS, published November 5, 2021, mandates that employers with 100 or more employees require the employees to either be vaccinated against COVID-19 or take weekly COVID-19 tests. Originally, the standard required compliance with certain items by December 6 and testing requirements by January 4, 2022. This prompted many legal challenges including possible breaches of civil rights and on November 12, the U.S. 5th Circuit Court of Appeals halted the enforcement of the ETS while the courts resolved the challenges. Four days later, these challenges were consolidated in the U.S. Court of Appeals for the 6th Circuit’s ruling.

The National Law Review (NLR) reported December 4 that the Sixth Circuit “tersely denied a petition to transfer the case back to the Fifth Circuit” the day before. “In the same order, the Sixth Circuit also denied, without explanation, the union petitioners’ bid to transfer the case to the D.C. Circuit where there is pending litigation of the OSHA Healthcare ETS issued in June 2020,” NLR continued.

The court is expected to decide OSHA’s motion to dissolve the stay on or after December 10. NLR speculates the court will issue a decision on challenges to the ETS before the holidays.

The U.S. Department of Labor’s Occupational Safety and Health Administration announced it would extend the comment period for the COVID-19 vaccination and testing ETS to Jan. 19, 2022. OSHA extended the comment period by 45 days to allow stakeholders additional time to review the ETS and collect information and data necessary for comment.

Interested parties can submit comments identified by Docket No. OSHA-2021-0007 electronically at https://www.regulations.gov, which is the Federal e-Rulemaking Portal.