17 Nov OSHA Suspends Enforcement of COVID-19 Vaccination and Testing Emergency Standard
On November 5, 2021, the Occupational Safety and Health Administration (“OSHA”) unveiled its emergency temporary standard (“ETS”) requiring employers with 100 or more employees to mandate vaccination against COVID-19 or weekly testing. Since then, the ETS has been met by a tidal wave of legal challenges nationwide. On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay (i.e., to halt) enforcement of the ETS “until further court order.” This order effectively blocks the ETS from going into effect across the nation while the pending lawsuits are being litigated.
In response to the Fifth Circuit’s order, OSHA announced that, “while it remains confident in its authority to protect workers in emergencies,” it was suspending all “activities related to implementation and enforcement of the ETS pending future developments in the litigation.”
The cases challenging OSHA’s ETS will now move to the U.S. Court of Appeals for the Sixth Circuit (the Circuit covering Michigan, Ohio, Kentucky, and Tennessee). The Sixth Circuit was selected at random to litigate these cases as part of the federal court system’s process for consolidating nationwide cases involving similar issues. The Sixth Circuit now has the authority to reaffirm, lift, or amend the Fifth Circuit’s stay order. A majority of the Sixth Circuit’s judges were appointed by Republican Presidents.
No one knows how long OSHA’s ETS will remain halted. A decision from the Sixth Circuit could take months. Similarly, a subsequent appeal to the U.S. Supreme Court could extend the wait even longer. Given the appeal and OSHA’s decision to suspend any enforcement of the ETS, it would seem OSHA’s original compliance dates of December 5, 2021, and January 4, 2022, are no longer viable. As such, employers wishing to adopt a “wait and see” approach to compliance may take some comfort in knowing they will most likely have more time. That said, it will take time to plan and prepare for compliance if a court determines the ETS is legal and lifts the stay. Since that could happen at any time, employers seeking the most prudent path should continue preparing for the ETS as if it may be going into effect imminently.
For the latest information regarding OSHA’s ETS, employers are strongly encouraged to contact the experienced labor and employment attorneys of the Masud Labor Law Group.