OSHA halts implementation and enforcement of the ETS, employers can press the “pause” button for now

The legal challenges to OSHA’s Emergency Temporary Standard (ETS) filed across the country are now in the hands of the Sixth Circuit Court of Appeals.

The temporary stay issued by the Fifth Circuit Court of Appeals on Nov. 6 and affirmed on Nov. 12 continues in effect. OSHA has acknowledged the legal challenges and put the brakes on implementation and enforcement of the ETS until the courts have an opportunity to rule. OSHA made the following statement on its website (opens a new window):

“On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.”

Yesterday, one of the parties in the lawsuits against OSHA filed a petition with the Sixth Circuit seeking an en banc hearing. Typically, the Sixth Circuit would follow a process of randomly assigning a panel of three judges to hear the case. On rare occasions, the Circuit may decide at the outset to hear the case en banc (meaning that all active judges from the Circuit would hear the case). With a petition filed seeking an en banc hearing, it may be more likely that the Sixth Circuit chooses this route as the issues surrounding the ETS seem worthy of such consideration. OSHA’s response to the petition is due next Tuesday, Nov. 23.

The Sixth Circuit will likely issue a briefing schedule after addressing the pending petition, but it will still be a few weeks before the case is resolved at the circuit court level. Once the Sixth Circuit issues an order on the fate of the ETS, the next step is likely the U.S. Supreme Court.

For now, employers can take a sigh of relief knowing that the ETS will not be implemented or enforced without judicial intervention. We will continue to keep you updated as these issues evolve.

Read alert (opens a new window)Not legal advice: Nothing in this alert should be construed as legal advice. Lockton may not be considered your legal counsel, and communications with Lockton's HR Compliance Consulting group are not privileged under the attorney-client privilege.