On Friday, January 7, 2022, the U.S. Supreme Court heard oral arguments on the issue of the Occupational Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”). As of publication, a ruling on whether or not to order a stay of the ETS or follow the Sixth Circuit’s decision to lift the stay has not been issued. Given that today, January 10, 2022, is the deadline that OSHA established for compliance with the ETS, with the exception of testing requirements with a separate deadline of February 9, 2022, it is expected that the Supreme Court will issue a decision shortly.
As is typical, the Court appeared divided with certain justices, namely Justice Sotomayor and Justice Kagen, appearing to favor proceeding with the ETS without further delay, while Justices Alito and Barrett, for example, raised concerns over the breadth of the order. Regardless, given the fact that we find ourselves at the compliance deadline without a stay in place, employers should continue efforts to comply with the ETS.
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