On November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) that requires large employers (100 or more employees) to (1) enforce a mandatory COVID-19 vaccination policy, or (2) enforce a policy that requires employees to undergo COVID-19 testing once every seven (7) days and wear a face covering at work.

In response, multiple lawsuits were filed that challenge the enforceability of the ETS on various grounds.  One key issue is whether OSHA has the authority to issue and enforce the ETS.  On November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an order staying, or temporarily preventing, enforcement of the ETS.  On November 12, 2021, the Fifth Circuit reaffirmed its initial stay and concluded that the petitioners’ challenges to the ETS are likely to succeed on the merits.  The Fifth Circuit ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.”

Following this ruling, OSHA stated that while it “remains confident in its authority to protect workers in emergencies,” it has “suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

What’s Next?

Currently, employers do not have to comply with the ETS.  Ultimately, the various lawsuits will be consolidated and transferred to one federal circuit court.  The decision of the federal circuit court will address whether the ETS is enforceable and thus, whether employers must comply with the same.  Such decision will be subject to review by the United States Supreme Court.  Employers should continue monitoring the status of this issue and the pending lawsuits and potentially plan for compliance with the ETS if the stay is lifted.

Please contact one of the employment law attorneys at Dvorak Law Group if you have questions regarding this information or if you have specific questions and recommendations regarding your business.