The U.S. Supreme Court has given the U.S. Department of Labor until Dec. 30 to respond to several petitions for an emergency stay of the Occupational Safety and Health Administration’s "Vax or Test" Emergency Temporary Standard (ETS). A divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit on Dec. 17 lifted a pre-existing stay, effectively reinstating the ETS for covered employees with at least 100 workers. 

The ETS is now in effect. However, OSHA has stated that it will exercise enforcement discretion with respect to employers exercising reasonable, good-faith efforts to come into compliance by not issuing citations for noncompliance before Jan. 10, 2022 for those mandates originally required to be met by Dec. 5, and by not issuing citations before Feb. 9 for noncompliance with the "vax or test" mandates originally required by Jan. 4.

Since the Supreme Court is unlikely to issue a decision prior to the New Year, it is very important that dealers review the mandates set out in OSHA’s ETS now, and consult with their counsel as to what steps toward compliance they should be taking. In that regard, see an NADA webinar, "OSHA’s New COVID-19 Employer Vaccine-or-Test Mandate: A Summary for Franchised Dealerships." 

In addition, recent examples of law firm outreach regarding OSHA’s ETS can be found here. Specific questions on how and when to comply with the ETS or with related state and local laws should be addressed to individual counsel. General questions on the ETS and on related court actions can be directed to regulatoryaffairs@nada.org.