OSHA Files Response to Stay of the Emergency Temporary Standard

As we previously reported, the 5th Circuit Court of Appeals directed OSHA to file a response to the stay of the Emergency Temporary Standard (ETS) by close of business yesterday, November 8, 2021. OSHA filed its response. OSHA’s position is that a stay is premature, since testing is not required until January. It also argued OSHA has authority to issue an ETS based upon its conclusion that COVID-19 presents a workplace hazard. The Department of Justice also filed a separate letter advising the court identifying the now 13 lawsuits pending in six different circuits challenging the ETS. The pending lottery selecting the circuit to hear any appeal is scheduled for November 16.

On a separate note, Cal/OSHA has provided notice to California employers that it will be conducting a special meeting on November 18 to consider what is describes as an almost identical ETS applicable to California workplaces. Multistate employers with California workforces will be subject to any Cal/OSHA ETS. The Cal/OSHA ETS has not yet been published for review or comment. Sometime this week or next other state OSHA agencies are expected to announce whether they intend to have their own ETS, or follow the published federal rule.

Leech Tishman will keep you updated as matters progress.

Previous Updates:

OSHA COVID-19 Emergency Temporary Standard- New Litigation Filed

OSHA COVID-19 Emergency Temporary Standard- Litigation Update

Fifth Circuit Court of Appeals in New Orleans Issues Stay of OSHA’s Emergency Temporary Standard

Employers with questions related to COVID-19 and the workplace following the ETS, or other questions related to employment law, should contact Philip Toomey.

Philip Toomey is Chair of the firm’s national Employment & Labor Practice Group, where he also leads the Public Sector Employment Group. He can be reached at 424.738.4400 or ptoomey@leechtishman.com.