On Friday, November 12, the United States Court of Appeals for the Fifth Circuit issued its opinion staying implementation of OSHA’s Emergency Temporary Standard, which applies to all employers with 100 or more employees. The ETS directs “large” employers to require their employees to be vaccinated or undergo weekly testing and wear a mask. The Fifth Circuit sided with the parties challenging OSHA’s rule. The Court considered the rule to exceed OSHA’s authority in a number of respects. The opinion can be found by clicking here.
Because there are cases pending in other circuits that also challenge the legality of OSHA’s ETS, those cases are expected to be consolidated before a randomly chosen federal circuit court of appeals that will be called upon to issue a single decision for all cases. We can then expect the issue to go to the United States Supreme Court on an expedited basis.
Will the implementation deadlines of December 6 and January 4 remain in effect? OSHA’s current position is that they do; however, in accordance with the Fifth Circuit’s order, OSHA has recently stated that it “has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.” Practically, if the legal challenges are not fully resolved by these dates, the deadlines would be extended.
It is still wise to prepare for the possibility that the ETS will eventually go into effect. There are several steps you can take in preparation, including developing a written policy, which is required by the ETS; determining who in your workforce is vaccinated and who is not so that you can develop the roster that the ETS requires; communicating your company’s plans to your employees in the event the ETS becomes law; and encouraging your employees to get vaccinated ahead of the potential deadlines so that their employment status is not interrupted should the mandate quickly go into effect. The steps your company chooses to take in preparation may be different depending on your workplace environment, anticipated costs of compliance, and risk tolerance.
We will continue to monitor the situation and provide further updates as appropriate.
Written by: Trip Umbach
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