It has been a legal whirlwind since OSHA issued its large employer emergency temporary standard (ETS), published in the Federal Register on November 5, 2021. As a refresher, the ETS required employees of large employers (those with 100 or more workers) to be either fully vaccinated by January 4, 2022, or submit to weekly testing and wear a mask. The ETS also contained provisions for verifying vaccine status, paid time off to get vaccinated, and recovery time for any post-vaccination side effects. Details of the OSHA ETS will be discussed in the next Webinar Wednesday.
However, immediately after the ETS was published, a number of states, businesses, and private individuals filed lawsuits to enjoin the implementation of the new standard. The 5th Circuit Court of Appeals issued a temporary stay, and on Friday, November 12th, the court formally granted a stay of the ETS pending a full review of the motion for a permanent injunction. The court further ordered that “OSHA take no steps to implement or enforce the Mandate until further court order.” The court’s opinion can be found here.
There are similar challenges pending in every circuit court except the 10th Circuit. It is anticipated that these suits will be consolidated into a single action and that one circuit court will be selected by lottery to hear the matter. That lottery selection is likely to occur on November 16th, at which time the one court could choose to continue the 5th Circuit’s stay or vacate that court’s action. Legal pundits predict this matter will ultimately make its way to the US Supreme Court for possible consideration and further action. In the meantime, employers with 100 or more total employees are encouraged to continue preparing for the implementation of the ETS. As an additional wrinkle, Washington employers are still waiting to learn whether the state intends to adopt the OSHA ETS as drafted or implement its own state plan which could be even more stringent. Stay tuned!