By Olivia Robinson and Nick Golding
On November 16, Occupational Safety and Health Administration (OSHA) announced it is suspending all activities relating to the enforcement of its Emergency Temporary Standard (ETS) requiring private employers with 100+ employees to mandate COVID-19 vaccinations or weekly tests and wear masks pending further litigation. Published in the Federal Register on November 5, 2021, the ETS faced an immediate deluge of legal challenges across the country. On November 6, the U.S. Court of Appeals for the Fifth Circuit issued an emergency stay of the ETS, pending briefing and expiated judicial review.
OSHA’s announcement was issued the same day the Judicial Panel on Multidistrict Litigation randomly selected the U.S. Court of Appeals for the Sixth Circuit, which is comprised of Ohio, Kentucky, Tennessee, and Michigan, to consolidate all the lawsuits opposing the ETS and decide the petitioners’ motions for a permanent injunction against the ETS. Petitioners and OSHA have stated that if the Sixth Circuit rules in the other’s favor, they will appeal the decision to the U.S. Supreme Court.
OSHA’s announcement indicates that employers affected by the ETS may be relieved from the upcoming December 5, 2021, deadline to implement vaccination policies and the January 4, 2022, testing requirements for nonvaccinated employees, as it will take time for the Sixth Circuit to issue its initial decision and any appeals to come before the U.S. Supreme Court makes its final ruling. Businesses should continue to monitor these developments to make sure that it is able to implement policies in compliance with the ETS should the mandate be upheld.
For additional information on this or any related topic, please contact any of the KDDK labor and employment law professionals.