OSHA ETS Temporarily Suspended. What now?

As you all know from our article earlier this month, OSHA issued an Emergency Temporary Standard (ETS) requiring that employees be either vaccinated for COVID-19 or get tested for the virus weekly. The rule applies to all private businesses with 100 or more employees.

Since the ETS was published on November 4, there has been a flurry of activity challenging its legality. Roughly 30 lawsuits in 12 different federal appellate circuits have been filed. The Fifth Circuit Court of Appeals in New Orleans issued a nationwide temporary stay of the rule just two days after the ETS was published. As is normal protocol in a situation with so many cases in so many jurisdictions, the cases are being consolidated into one proceeding and, by a lottery held on November 16, have been assigned to the Sixth Circuit Court of Appeals. The chance assignment may be a positive one for those who oppose the ETS, as the Sixth Circuit (which usually covers only Ohio, Michigan, Tennessee, and Kentucky) has been described as increasingly conservative in recent years.

The Fifth Circuit’s nationwide stay remains in effect until the Sixth Circuit rules otherwise. The timing on any decision from the Sixth Circuit is still unknown (though it can reasonably be anticipated in days or weeks, rather than months). In any case, it’s highly likely that the Sixth Circuit’s decision will be appealed to the Supreme Court. Whether the Supreme Court decides to hear the case is another hurdle and, if it declines to do so, the Sixth Circuit’s ruling would remain in effect.

OSHA formally announced on its website late last week that it was suspending implementation and enforcement of the ETS pending judicial resolution. So, for now, the ETS remains on pause. Covered employers would be wise to stay abreast of developments as the consolidated cases move through the judicial process.

While the ultimate future of the ETS is uncertain, employers should not put this on the shelf altogether. Employers should, at a minimum, familiarize themselves with whether they would be required to comply and understand what compliance for them would look like. If compliance would require significant changes, employers should make a plan. If the ETS is upheld, those employers will need to be ready to go.

By Rebecca D. Bullard, rbullard@dsda.com and Kristen L. Brightmire, kbrightmire@dsda.com