By: Philip A. Toomey, Esq.
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.
Employers with questions related to COVID-19 and the workplace following the ETS, or other questions related to employment law, should contact Philip Toomey.
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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in business restructuring & insolvency, corporate matters, employment & labor, estates & trusts, intellectual property, litigation & alternative dispute resolution, and real estate. In addition, the firm offers a wide range of legal services to clients in the aviation & aerospace, cannabis, construction, energy & natural resources, healthcare, and hospitality industries. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York, Philadelphia, Sarasota, Washington, D.C. and Wilmington, DE.