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The OSHA ETS Seesaw
The OSHA ETS Seesaw

Many of you saw our Client Alert detailing the requirements of the Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) on November 4, 2021.  The ETS applies to employers with 100 employees or more and contains COVID-19 vaccine and/or testing requirements that employers must adopt to minimize the risk of COVID-19 transmission in the workplace.

On November 12, 2021, the United States Court of Appeals for the Fifth Circuit issued a ruling imposing a stay on enforcement of the ETS.  The federal appellate court ordered OSHA to “take no steps to implement or enforce the ETS until further court order.”  We now know that OSHA does not intend to implement or enforce the ETS while a stay in in place.  OSHA has placed the following statement on its website regarding the implementation and enforcement of the ETS:

OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

The legal challenges to the ETS are now before the United States Court of Appeals for the Sixth Circuit due to a lottery process which chooses which appellate court will hear consolidated appeals of similar legal challenges filed in multiple appellate courts.  The Sixth Circuit Court of Appeals will now randomly assign a three-judge panel to hear the consolidated challenges.  We expect that OSHA will ask the Sixth Circuit to repeal the stay issued by the Fifth Circuit Court of Appeals.

Given this legal activity, the future of the ETS is uncertain.  Compliance with the ETS will require significant planning by employers.  As a result, employers should continue to monitor the enforcement status of the ETS and consider putting plans in place to comply with the ETS should the stay be modified or dissolved. 

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