On November 6, the day after the OSHA issued its Emergency Temporary Standard (ETS) requiring mandatory vaccination or weekly testing for COVID-19, the Fifth Circuit Court of Appeals issued an order temporarily staying the enforcement and implementation of the ETS pending a more thorough review. After reviewing additional briefing from each side, the court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” There are several similar challenges pending in federal courts across the country, and, as a result, the Judicial Panel on Multidistrict Litigation held a lottery appointing the Sixth Circuit Court of Appeals to hear all legal challenges to the ETS. OSHA will certainly ask the Sixth Circuit panel of judges to overturn the Fifth Circuit’s stay. Notably, although the Sixth Circuit is predominantly conservative, the panel of three judges that will consider the legal challenges to the ETS has not yet been selected. Once selected, we will have more insight on the likelihood of success. Regardless of how the Sixth Circuit rules, the losing party will certainly ask the Supreme Court to make a final determination of the fate of the ETS.
In response to the ETS litigation, OSHA issued a statement that it was suspending “activities related to the implementation and enforcement of the ETS” but noting that it “remains confident in its authority to protect workers in emergencies” and expects the ETS to be upheld. This is good news for employers unsure of how to proceed, providing needed breathing room in the event that the ETS is ultimately implemented.
Turning to the million-dollar question: “What do employers do now?” First, it is certainly too early to guess what will happen in the courts. As such, employers should continue to prepare for implementation of the ETS, including ensuring that it has a compliant policy ready. Second, for those who choose to permit weekly COVID-19 testing, employers should make a decision on how and when they intend to conduct weekly testing if the ETS takes effect. Third, and finally, employers should train the appropriate HR representatives on its ETS policies so that it can comply with the requirements on short notice if necessary.
We will continue to monitor all developments. Please reach out to Gray Reed’s Labor and Employment Department with any questions.