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.

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