Status of OSHA COVID-19 Vaccination and Testing Emergency Temporary Standard

In the 1960s, there was a daily soap opera, As the World Turns. Each day, the drama would twist and turn as the characters trudged what appeared one day to be a clear path, only to tune in the next day and discover a new divergent fork in the road. The analogy seems unfortunately appropriate to some public reporting of the current OSHA Emergency Temporary Standard (ETS) mandate, and employers’ attempts to understand and implement appropriate “next steps.” Inaccurate information appearing on social media, which has found its way into some online reporting services, has also added confusion to the discussion. Here is the current status of the ETS litigation and an update to our previous Client Alerts.

OSHA Enforcement and Implementation of the ETS. Yesterday afternoon, OSHA posted on its website that in compliance with the order of the Fifth Circuit Court of Appeals, it has “suspended activities related to the implementation and enforcement” of the ETS. OSHA prefaced the statement with its assertion that it remains “confident in its authority to protect workers in emergencies.” In other words, OSHA has done nothing more than adopted a “wait and see” attitude to what happens to the Fifth Circuit’s order, or any further orders. Any contrary “reports” (including OSHA has conceded, or that the compliance dates contained within the ETS are vacated) are not supported by facts, official statements, or background information. Unless prevented by specific court orders, OSHA stands by the ETS and intends to enforce it.

Action in the Sixth Circuit. As we previously reported, all challenges to the ETS have been consolidated and assigned to the Sixth Circuit. The lead case is the Bentkey Services petition. An emergency motion for stay was filed in that case, but upon which the Sixth Circuit has not yet ruled. This petition has not been assigned to any panel of judges. This morning, Bentkey filed a request that the pending request for stay, petition for review, and all the coordinated petitions not be heard by a panel of three judges, but be heard “en banc.” What has been requested is all matters be heard in a single setting by all the judges of the Sixth Circuit and not a smaller panel. The stated reason for the request is judicial efficiency. That makes some sense since there are now 34 separate petitions. At the same time, and as we previously reported, the political make up of the entire panel weighs more heavily towards Republican-appointed judges.

Employer’s Next Steps. It is still our best advice that covered employers strongly consider taking appropriate “proactive steps” to avoid being caught flat footed if (or when) the stay is modified or lifted. Proactive steps include preparing (and having management finalize and approve) a draft written vaccination policy, compliance policy, communication plan to be implemented if the stay is lifted or the ETS upheld, and budgeting for anticipated expenses. Covered employers should currently prepare a roster to document vaccination status of all employees (the roster is a confidential record of medical information), and remain vigilant to, and comply with, state OSHA rules, other mandated vaccination orders (including those applicable to federal contractors and healthcare workers), and all other applicable state and local health orders and mandates.

Previous Updates:

Challenge to OSHA Emergency Rule to Be Heard by Sixth Circuit (November 16, 2021)

OSHA Files Response to Stay of the Emergency Temporary Standard (November 9, 2021)

OSHA COVID-19 Emergency Temporary Standard- New Litigation Filed (November 8, 2021)

OSHA COVID-19 Emergency Temporary Standard- Litigation Update (November 7, 2021)

Fifth Circuit Court of Appeals in New Orleans Issues Stay of OSHA’s Emergency Temporary Standard (November 6, 2021)

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.