On November 16, 2021, OSHA (Occupational Safety and Health Administration) published that the COVID-19 vaccination and testing ETS (Emergency Temporary Standard) is being put on hold due to pending litigation.
What We Know
- The OSHA ETS went into effect on November 5th, 2021.
- The ETS has two compliance dates important to employers with 100 or more employees.
- December 5th: Employers were to finalize their policies on vaccine mandates and weekly testing requirements
- January 4th: Employers were to be in compliance with weekly testing by this date.
- The vaccine mandate has met legal challenges wherein on November 12, 2021, the 5th Circuit Court of Appeals upheld a stay. The stay order issued by the three-judge panel directs OSHA to “take no steps to implement or enforce” the ETS.
- Until the stay is lifted or a ruling is reached, the ETS is not in effect and employers do not need to comply with the January 4, 2022 deadline.
- On November 16th, a federal appeals court in Cincinnati (the 6th Circuit Court of Appeals) has won the lottery to handle the consolidated case challenging the ETS. No date has been set on when this court will make a ruling.
The 5th Circuit Court of Appeals Ruling
On Nov. 12, 2021, the 5th Circuit Court of Appeals ruled to extend the stay of the OSHA ETS, stating the ETS imposes financial burdens on private employers. The court also claimed that the ETS fails to account for the different elements present between workplaces. Overall, the court raised substantial questions on whether OSHA has proven that COVID-19 presents a “grave danger” to workers and if the ETS is “necessary.”
Circuit Court Lottery
Attorneys general, employers, unions, and other organizations filed 34 petitions seeking review of the OSHA rule in 12 different circuit courts, according to the U.S. Judicial Panel on Multidistrict Litigation. All of the lawsuits concerning the ETS for all Circuit court districts were then consolidated and, through a “lottery drawing” the Judicial Panel on Multidistrict Litigation randomly determined which Circuit court would review the arguments.
On November 16th, a federal appeals court in Cincinnati (the 6th Circuit Court of Appeals) has won the lottery to handle the consolidated case challenging the ETS. No date has been set on when this court will make a ruling.
While the Sixth Circuit won the random draw, the lottery doesn’t necessarily end the jockeying over which court will ultimately hear the case. Parties can petition circuit courts to transfer the case elsewhere.
And no matter what happens at the circuit court level, the U.S. Supreme Court is likely to have the final say on the vaccinate-or-test emergency temporary standard. Yet the appeals court’s decision could set the table for the justices by framing the debate and raising which legal questions will determine the rule’s fate.
Next Steps for Employers
- Continue to monitor updates for changes in status to OSHA’s ETS
- Be prepared in the event the ETS survives the upcoming litigation
- Remember employers still have a continued duty to make their workplaces safe for employees.
Statement from OSHA
OSHA released a statement on its website. The statement reads:
“On Nov. 12, 2021, the U.S. Court of Appeals for the 5th Circuit granted a motion to stay OSHA’s ETS, published on Nov. 5, 2021 (86 Fed. Reg. 61402). The court ordered that OSHA ‘take no steps to implement or enforce’ the ETS ‘until further court order.’ While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS, pending future developments in the litigation.”