On November 16th, OSHA announced that it has suspended activities related to the implementation and enforcement of its Emergency Temporary Standard (ETS) on mandatory COVID-19 vaccination and testing in the workplace for organizations with more than 100 employees, pending future developments in the litigation. This was in response to the 5th Circuit of U.S. Court of Appeals’ recent ruling to extend the stay of the ETS and the filing of multiple lawsuits in the other federal circuit court districts. The lawsuits will now be consolidated into one litigation and heard by the 6th Circuit Court of Appeals.
The 5th Circuit Court of Appeals Ruling
On November 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
Even though the 5th Circuit Court of Appeals ruled to extend the stay of the OSHA ETS, all other petitions from parties across the nation were due by November 16, 2021, to consolidate the lawsuits concerning the ETS for all Circuit court districts. On November 16, 2021, the Judicial Panel on Multidistrict Litigation randomly determined through a “lottery drawing” which Circuit court would review the ETS arguments. From there, the 6th Circuit Court of Appeals was selected. It is not certain when this court will make a ruling on the arguments.
In response to the 5th Circuit Court of Appeals ruling to extend the ETS stay, OSHA released a statement on its website. The statement reads:
“On November 12, 2021, the U.S. Court of Appeals for the 5th Circuit granted a motion to stay OSHA’s ETS, published on November 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.”
Employers should continue to monitor OSHA ETS updates to determine if there are any changes in its status. At this point, employers should at a minimum understand the requirements of the ETS in case it survives the upcoming litigation.
Employers should also remember that regardless of the ETS being on hold, OSHA still can cite employers under the General Duty Clause. In other words, employers still have a continued duty to make their workplaces safe for their employees.
We will continue monitoring any developments and provide further information as needed.
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