Update: No Enforcement of OSHA’s COVID-19 ETS

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

As you’ve probably read in the news, a number of legal challenges have been filed against the OSHA COVID-19 vaccination/testing ETS for large employers.  The 5th Circuit issued a stay on enforcement of the ETS on November 6th and then, later on November 12th reaffirmed that stay holding that the challengers of the ETS are likely to succeed on the merits of the case.

Due to the large number of lawsuits that have been filed in different federal circuits around the country, a Multi-District Litigation lottery was held to decide which circuit would get to decide the merits of the challenges raised in the multiple lawsuits.  The 6th Circuit won the lottery and is now the court to watch.  The court has not yet set a briefing schedule for the petitioners and the administration to submit their respective briefs, but it is likely this will happen in the next few weeks.

Also, it is unknown at this time whether the 6th Circuit will keep in place the 5th Circuit’s stay on the OSHA ETS.  However, yesterday OSHA updated its website relating to the COVID-19 ETS to make clear that it will suspend implementation and enforcement activities pending the developments in the litigation.  OSHA said specifically:

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.

Weintraub Tobin will continue to monitor developments in the 6th Circuit relating to the OSHA ETS.  For more information regarding OSHA’s ETS, click here.