Key to remember:  OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

Applies to: Private industry employers with 100 or more employees. This applies to agriculture, general industry, shipyard, maritime, longshoring, and construction.

Impact to customers: Employers are advised to follow the case closely the next few weeks, and certainly be prepared to implement quickly if the rule does survive. (Compliance dates are likely NOT to be extended; so, if the ETS is upheld, employers will not have much time to act.)

On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to halt OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), published on November 5. The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” OSHA appealed that decision to a multi-circuit panel, who, on November 16, consolidated all petitions from all circuits against the ETS into one case to be heard by the Sixth Circuit Court of Appeals.

Currently, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

What to expect next

The Sixth Circuit will likely rule soon. They could either uphold, revise, or vacate the Fifth Circuit’s halt to the ETS. No matter their ruling, however, the case is likely headed to the Supreme Court.

The Supreme Court could choose to hear arguments, which would likely push out the ETS to the end of the year. Or they might take a quicker route, ruling on the merits established, possibly by the end of the month.

While the rule has been dealt a huge blow, as the Fifth Circuit basically hammered it on every angle, it is not dead yet. The Supreme Court has been lenient when it comes to pandemic-related mandates. However, they have yet to be presented with one as far-reaching and controversial as the OSHA ETS. Employers are advised to follow the case closely the next few weeks, and certainly be prepared to implement quickly if the rule does survive. (Compliance dates are likely NOT to be extended; so, if the ETS is upheld, employers will not have much time to act.)