Legal Challenges To OSHA’s COVID-19 Emergency Temporary Standard

In our Firm’s Alert issued on November 4, 2021, we addressed OSHA’S COVID-19 Emergency Temporary Standard (ETS). As expected, the legal challenges to the ETS have been swift.

At least 26 states and numerous private businesses have filed or joined lawsuits seeking judicial review of the ETS, and in some cases, requesting a temporary stay of, or permanent bar on, enforcement of the ETS. On November 6, 2021, the 5th Circuit Court of Appeals issued an order granting a temporary stay of enforcement of the ETS. The court ordered the Biden administration to respond to a motion to enjoin the ETS by Monday, November 8. A ruling from that court can be expected soon. It is likely that some courts will uphold the ETS whereas other courts will find it invalid. It is possible that the U.S. Supreme Court will have to decide the issue with finality.

Because the legal outcome is uncertain, and due to the short time frames for coming into compliance with the ETS if it is not blocked, employers with 100 or more employees and not subject to other federal vaccination mandates (such as federal contractors and Medicaid/Medicare participants) should still plan on abiding by the ETS and implementing either a mandatory vaccination program (with exemptions for those that qualify) or a program that allows employees to choose between vaccination or weekly testing and masking.

Stay tuned to our website for continued updates on this issue.