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By: Bradley Adler
It has been a very hectic and uncertain few days for employers trying to digest and prepare for implementation of OSHA’s Covid-19 Emergency Temporary Standard (“ETS”). By way of background, on November 5, 2021, OSHA unveiled its ETS mandating employers with at least 100 employees to develop a vaccination policy (by December 6, 2021) that requires employees to either receive the Covid-19 vaccine or submit to weekly testing by January 4, 2022. Numerous legal challenges have been lodged against OSHA and, on November 12, 2021, the Fifth Circuit Court of Appeals issued a 22 page order staying enforcement and implementation of the ETS.
After this stay was issued, employers pondered whether they had to move forward with implementing the requirements of the ETS, including developing a Covid-19 vaccine policy and gathering vaccination status of their employees by December 6, 2021, while the legal challenges played out in court. OSHA had been silent on this issue until late yesterday when it announced it was “suspending activities related to the implementation and enforcement of the ETS pending future developments in the litigation” (source). With OSHA’s announcement, we believe it is safe for employers covered by the ETS to hit pause on implementing the mandates of the ETS, including developing a Covid-19 vaccine policy and gathering vaccination status of their employees. For those employers who have not yet communicated their ETS plans to their workforce, this is a good opportunity to tell everyone about the latest announcement from OSHA (and what the company is now doing in response).
For employers who already have publicized their upcoming implementation plans, it will be important to update everyone on the OSHA press release and the impact on the company’s previously announced plans. In doing so, for those employers who wish to hit pause, it is important to understand that the 5th Circuit’s stay and OSHA’s resulting announcement does not foretell the end result of the ETS. Yesterday, the 6th Circuit Court of Appeals was randomly selected to decide all of the legal challenges filed in federal circuit courts across the country in a consolidated review process. This review process will include the 5th Circuit’s November 12 stay. Of course, many understandably anticipate that, even after the 6th Circuit issues its ruling, it will be the Supreme Court that ultimately decides the enforceability of the ETS.
So, everyone should recognize that OSHA’s announcement is not a death knell to the ETS and it is possible that some or all parts of the ETS will be upheld and go into effect at some point in the future. For right now, however, employers can breathe a sigh of relief and hit pause (even if just temporarily) in trying to navigate the ETS mandate.