November 9, 2021 Article

Not So Fast: OSHA’s ETS in Limbo While Challenges Play Out

Over the weekend, the Fifth Circuit Court of Appeals temporarily blocked the emergency mandatory vaccine and testing regulations published in place by the Occupational Safety and Health Administration (OSHA).  As of November 9, 2021, legal challenges to the Emergency Temporary Standard (ETS) are pending before at least four (4) federal courts of appeal across the country involving no fewer than twenty-six (26) different states.

In its bare bones ruling, issued in B.S.T. Holdings, LLC et al. v. Occupational Health and Safety Administration et al., No. 21-60845, the Court granted the Petitioners’ emergency motion, citing “grave statutory and constitutional issues.”  The Fifth Circuit issued a temporary stay of the ETS and ordered the parties to submit written briefs early this week laying out their respective constitutional and statutory arguments concerning the ETS.  The fate of the ETS will likely be resolved before the U.S. Supreme Court, given the number of pending challenges and the probability that there will be competing judicial rulings.

Many of the pending legal challenges contend that OSHA exceeded its statutory authority in issuing the ETS.  The Secretary of Labor is authorized to issue an ETS where employees are exposed to a “grave danger” and immediate action is necessary to protect those employees from such danger. 29 U.S.C. § 655(c)(1); Public Citizen Health Research Group v. Auchter, 702 F.2d 1150, 1156 (D.C. Cir. 1983).  To resolve this question, courts will determine whether other options were available to OSHA for addressing the workplace health risks posed by COVID-19 and evaluate OSHA’s justification for setting the rule’s coverage threshold at 100 employees.

Should human resources manager assume that the ETS is dead on arrival?  Hardly.  There is no harm in using this hiatus to undertake some implementation planning.  Employers that have not polled their workers thus far about whether they are fully vaccinated might wish to issue a questionnaire intended to shed light on the number of workers who might opt for alternative regular testing procedures.  At minimum, it makes sense to review the ETS planning resources OSHA has posted on its website and strengthen internal recordkeeping practices with respect to employee medical information.

Firm Highlights


Health Coverage Incentives for Unvaccinated Employees

Employers wrestling with COVID-19 vaccination-reluctant employees have a lot on their plates. New federal mandates may require affirmative action but even without these new rules, the real problem is how to persuade your workers...


New Maine Law Limits Employers’ Ability to Request Applicant Criminal History Information

Last month Governor Mills signed into law LD 1167, “An Act Relating to Fair Chance in Employment.” Maine joins a growing number of states in adopting a “ban-the-box” law that restricts employers’ ability to...


46 Preti Flaherty Attorneys Selected by Peers for Inclusion in Best Lawyers in America 2022, Including 3 “Lawyers of the Year”

Forty-six Preti Flaherty attorneys have been named to Best Lawyers in America 2022, including four “Ones to Watch” and three “Lawyer of the Year” recipients. Inclusion in Best Lawyers in America is considered a...


Understanding the New COVID-19 Vaccine Mandate for Healthcare Workers

Many Maine healthcare facilities were already in the process of evaluating, drafting, and implementing mandatory vaccine policies when the Maine Department of Heath and Human Services issued an Emergency Routine Technical Rule on the...


Beyond Maine’s Ban-the-Box Statute: Practical Employer Considerations

In five (5) days, Maine’s Fair Chance Employment Act goes into effect.  We originally summarized the objective and impact of that legislation in an alert posted on August 11, 2021 .  Now is the...


Employees Who Refuse to Comply with a Mandatory Vaccination Policy are Generally Ineligible to Receive Unemployment Benefits

Following a nationwide spike in cases, hospitalizations, and deaths, an increasing number of Maine private businesses and colleges have joined the healthcare industry in requiring workers to provide proof of vaccination against COVID-19. Vaccine...


The Latest from OSHA on Mitigating and Preventing the Spread of COVID-19 at Work

On the tails of updated guidance from other agencies, the U.S. Department of Labor Occupational Safety and Health Administration ("OSHA") released new pandemic-related guidance last month. This guidance was issued on June 10, 2021...


U.S. News – Best Lawyers Ranks Preti Flaherty Among 2022 Best Law Firms

Preti Flaherty has been named among the 2022 Best Law Firms by the U.S. News – Best Lawyers rankings. To be eligible for ranking, a law firm must have at least one attorney named...


Six Take-Aways from EEOC’s Updated COVID-19 Guidance

The U.S. Equal Employment Opportunity Commission ("EEOC") published guidance in December 2020 advising how EEO laws, including the Americans with Disabilities Act, Title VII of the Civil Rights Act, and the Genetic Information Nondiscrimination...


OSHA Issues Long-Awaited Vaccination Rule for Large Employers

After waiting with bated breath for nearly two (2) months, employers will finally have access to OSHA’s Emergency Temporary Standard (ETS), which is scheduled for publication in the Federal Register on November 5, 2021...