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Greenbaum, Rowe, Smith & Davis LLP Client Alert

What You Should Know

Where Things Stand Now

To address the uncertainty created by the earlier stay and the Sixth Circuit’s opinion upholding the ETS, OSHA stated in a December 18 news release that it would not issue any citations for noncompliance with any requirements of the ETS prior to January 10, 2022. OSHA further advised that it would not issue any citations for noncompliance with the testing requirements of the ETS prior to February 9, 2022, provided an employer is exercising reasonable, good faith efforts to come into compliance with the requirements.

Following the Sixth Circuit’s opinion upholding the ETS, 27 states and other parties filed emergency motions with the U.S. Supreme Court to block the enforcement of the stay. On January 7, 2022, the Supreme Court is scheduled to hear oral argument on the Sixth Circuit’s decision to lift the stay on the ETS. While this argument will be heard on an expedited basis, it should be noted that this is scheduled to occur only three days prior to the first date on which OSHA has indicated it may begin issuing citations for noncompliance.

Guidance for Covered Employers

These are certainly unprecedented and uncertain times for everyone. Today’s guidance may soon become dated in certain respects. Actions taken now may ultimately prove unnecessary depending on how the U.S. Supreme Court rules next month. 

Notwithstanding this confusing situation, it is important for all employers to take the following steps:

We will continue to monitor the status of the legal challenges to the ETS and report on future developments related to the rapidly evolving laws, rules, and regulations involving COVID vaccination and testing mandates. Please contact the authors of this Alert with questions or to discuss your specific circumstances.

Thomas C. Senter Joel Clymer

Thomas C. Senter

Co-Chair, Employment Law Department



Joel Clymer

Member, Employment Law Department