November 16, 2021

OSHA Suspends ETS

 

The Occupational Safety and Health Administration (OSHA) published on their website on Nov. 16, 2021, that the COVID-19 vaccination and testing emergency temporary standard (ETS) is being put on hold due to pending litigation.

The OSHA ETS went into effect on Nov. 5, 2021, and was set to have two compliance dates: one date for employers to finalize their policies on vaccine mandates or weekly testing requirements and another date for the weekly testing to begin. Keep reading to learn more about what’s next for the ETS.

The 5th Circuit Court of Appeals Ruling

On Nov. 12, 2021, the 5th Circuit Court of Appeals ruled to extend the stay of the OSHA ETS, stating the ETS imposes financial burdens on private employers. The court also claimed that the ETS fails to account for the different elements present between workplaces. Overall, the court raised substantial questions on whether OSHA has proven that COVID-19 presents a “grave danger” to workers and if the ETS is “necessary.”

Circuit Court Lottery

Even though the 5th Circuit Court of Appeals ruled to extend the stay of the OSHA ETS, all other petitions from parties across the nation were due by Nov. 16, 2021, to consolidate the lawsuits concerning the ETS for all Circuit court districts. On Nov. 16, 2021, the Judicial Panel on Multidistrict Litigation randomly determined through a “lottery drawing” which Circuit court would review the ETS arguments. From there, the 6th Circuit Court of Appeals was selected. It is not certain when this court will make a ruling on the arguments.

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