Fifth Circuit Stays OSHA ETS
On November 5th, the Occupational Safety and Health Administration (OSHA) published an Emergency Temporary Standard (ETS) requiring employers with 100 or more employees to implement policies either mandating vaccination or requiring employees to wear face coverings and engage in COVID-19 testing. The Court of Appeals for the Fifth Circuit initially stayed the ETS on November 6th, pending expedited judicial review. On November 12th, the Court reaffirmed their initial stay, finding that the challenges “show a great likelihood of success on the merits.” Specifically, the Court noted that “emergency temporary standards ‘are an unusual response to exceptional circumstances’”, and that this ETS “grossly exceeds OSHA’s statutory authority”.
Additional challenges to the ETS have been filed in other courts throughout the country. It is expected that these cases will be consolidated into one appeal in one of the circuit courts via lottery system. That court may then modify, continue, or lift the Fifth Circuit’s stay. Ultimately, the issue may be decided by the Supreme Court. However, any such decision would likely be weeks away. The ETS imposes relatively short compliance timelines. Given the continued uncertainty over its enforceability, employers should consider whether it make sense to continue to prepare appropriate policies that can be implemented in the event the stay is lifted. Employers with questions about the ETS or about COVID-19 vaccination or testing/masking policies, should contact Kristina Grimshaw at kgrimshaw@fglawllc.com, or any attorney at the Firm.
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