On Friday, November 12, 2021, the United States Occupational Safety and Health Administration (“OSHA”) announced that it is suspending “activities” related to the implementation and enforcement of its COVID-19 vaccination/testing ETS. The ETS, which was published on November 5, 2021, applies to employers with at least 100 employees. Our alert describing the requirements of the ETS is available here. As a result of OSHA’s announcement, it is unlikely that employers subject to OSHA’s ETS will be required to comply with the ETS’s December 5, 2021 and January 4, 2022 deadlines.
OSHA’s announcement came as a result of an order by the United States Court of Appeals for the Fifth Circuit on Friday directing OSHA to take no further steps towards the implementation and enforcement of the ETS “until further court order.” In its decision, the Fifth Circuit held that the ETS was not a proper subject of emergency action by OSHA. The court also noted that the ETS “raises serious constitutional concerns.”
The Fifth Circuit’s decision does not end the questions concerning the legality of the ETS. Petitions for review of the ETS are pending in 11 of the 12 Federal Circuit Courts of Appeal. All petitions will be consolidated before one of the circuits via a lottery as soon as November 16, 2021, and the chosen circuit will then hear the case and determine whether to continue, revise, or lift the Fifth Circuit’s stay. Ultimately, the United States Supreme Court is expected to have the final say regarding whether the ETS is implemented.
Although the ETS has been halted, employers should continue to monitor legal developments and consider continuing preparations to implement the ETS in the event a court lifts the stay. Notably, OSHA’s announcement and the Fifth Circuit’s decision does not impact state or local vaccination or testing requirements or the vaccination mandates for federal contractors and sub-contractors subject to Executive Order No. 14042 or healthcare employers that are subject to the Centers for Medicare & Medicaid Services mandate.