By: Philip A. Toomey, Esq.
Status of OSHA Litigation
Late yesterday afternoon, December 22, the U.S. Supreme Court entered two orders directly impacting mandatory COVID vaccinations and testing. In the first, involving the OSHA Emergency Temporary Standard (ETS), Justice Kavanaugh referred the request for an emergency stay to the entire Court. The Court then issued an order deferring any decision on the stay pending oral argument, which it set for January 7, 2022. In the second, involving a request for an emergency stay of the Biden Administration order requiring mandatory vaccination at medical facilities receiving Medicare or Medicaid funds (the CMS Mandate), Justice Alito referred the request to the entire Court. The Court again issued an order deferring any decision on the stay pending oral argument, also set for January 7, 2022.
Status of the ETS
There is no stay of the ETS. The dates which were originally set remain. The dates originally set by OSHA remain in effect. In order to take advantage of the extended compliance dates announced by OSHA (January 10, 2022 for all requirements other than testing, and February 9, 2022 for testing) covered employers must be taking active good faith steps to become compliant. Covered employers who are not taking such steps are subject to citation based upon the previous dates (which includes testing to start by January 4, 2022.
Steps to Be Taken
By the Supreme Court setting both the ETS and the CMS Mandate case for argument at the same time, it appears the Court wants to put to rest any federal Constitutional issues related to this area. Consistent with what was discussed yesterday in our Leech Tishman briefing (and which occurred prior to action by the Supreme Court), covered employers must take documented, concrete steps to become compliant with all requirements of the ETS. If the Court issues a ruling immediately after argument upholding the ETS, covered employers who have failed to take active steps will have an immediate obligation to be fully compliant with all requirements of the ETS other than testing. While this may be a classic Hobson’s choice, in light of the substantial fines OSHA intends to levy, Leech Tishman’s approach remains consistent- prudent covered employers should take immediate steps to become compliant.
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.