By: Chris Fontan
Less than 2 days after the Occupational Safety and Health Administration (“OSHA”) finally released its anticipated, and highly controversial, emergency temporary standard (“ETS”) addressing COVID-19 testing and vaccination, a federal court has thrown up a huge road block in the path of its full implementation. The Court’s injunction temporarily prevents OSHA from enforcing its controversial new ETS.
As we previously reported, on November 4, 2021, OSHA unveiled its controversial ETS, which essentially requires employers with 100 or more employees to either mandate COVID vaccinations or proof of negative COVID tests on a weekly basis as a condition of employment. As predicted, soon after President Biden initially instructed OSHA to begin working on plans for the proposed rule, the ETS was met with immediate legal challenges. Most notably, a number of parties, including several businesses, advocacy groups, and the states of Texas, Louisiana, Mississippi, South Carolina, and Utah filed a motion for a preliminary and a permanent injunction with the U.S. Court of Appeals for the Fifth Circuit.
On Saturday, November 6, 2021, the Fifth Circuit granted their “emergency motion” and entered a preliminary stay barring enforcement of the ETS. Citing “grave statutory and constitutional issues,” the Court stayed the ETS until further notice by the Court. In addition, the Court ordered the parties to submit further briefing about the validity of the ETS by November 8th and 9th respectively. The stay order issued on November 6th is not a final ruling on the validity of the ETS, but will halt its implementation at least temporarily.
Louisiana Attorney General Jeff Landry said the action stops Democratic President Joe Biden “from moving forward with his unlawful overreach.” Louisiana was one of the states bringing the lawsuit seeking to stop enforcement of the ETS. “This is a great victory for the American people out there. Never before has the federal government tried in such a forceful way to get between the choices of an American citizen and their doctor. To me that’s the heart of the entire issue,” he said. Meanwhile, Solicitor of Labor Seema Nanda said the U.S. Department of Labor is “confident in its legal authority” to issue the rule, stating that the OSH Act of 1970 “explicitly gives OSHA the authority to act quickly in an emergency” and OSHA is “fully prepared to defend [the ETS] in court.”
The future of the ETS remains uncertain due to this and other pending legal challenges. While the final result is unknown, it will take weeks of planning for employers to comply with the ETS’s deadlines. With that in mind, employers should continue preparing for the ETS as if it is going to take effect while litigation continues.