Rapid Developments For OSHA's COVID-19 Emergency Temporary Standards

• Published date: 12 January 2022
• Subject Matter: Employment and HR, Food, Drugs, Healthcare, Life Sciences, Compliance, Coronavirus (COVID-19), Health & Safety, Employment and Workforce Wellbeing
• Law Firm: Beveridge & Diamond
• Author: Mr Mark N. Duvall, Jayni A. Lanham and Heidi P. Knight

One in, one out, one in again.

One in: Employers with 100 employees or more should be prepared to comply with OSHA's emergency temporary standard (ETS) that would require them to have their employees fully vaccinated or tested regularly. After extensive litigation, the ETS is currently in effect, although OSHA has delayed the compliance dates. This could change soon, however. The ETS is in the hands of the Supreme Court, which will hear oral arguments on Friday, January 7, 2022. Unless the Court acts immediately, employer compliance with large parts of the ETS will be due the following Monday, January 10.

One out: OSHA has withdrawn most of its ETS for healthcare employers, as more than six months have passed without adoption of a permanent standard, as required by section 6(c) of the Occupational Safety and Health Act of 1970 (OSH Act). Withdrawal will likely become official once OSHA publishes a notice to that effect in the Federal Register. OSHA encourages continued voluntary compliance with the healthcare ETS, as it plans to enforce its General Duty Clause using the ETS as guidance.

One in again: OSHA is taking the position that with the healthcare ETS withdrawn, healthcare employers with 100+ employees are subject to that ETS. This is likely to take effect once OSHA publishes the Federal Register notice officially withdrawing the ETS.

100+ Employees Vaccination and Testing ETS - Litigation

As discussed in our previous alert, OSHA published its ETS for employers with 100 or more employees on November 5, 2021, 29 C.F.R. ' 1910.501, 86 Fed. Reg. 61402 (Nov. 5, 2021). Petitions for judicial review were promptly filed in 12 federal circuits. On November 6, the Fifth Circuit issued a stay of the ETS. It reaffirmed that stay in a published opinion on November 12, BST Holdings, L.L.C. v. OSHA, 17 F.4th 604 (5th Cir. 2021).

A few days later, the Judicial Panel on Multidistrict Litigation held a lottery and issued an order naming the Sixth Circuit as the court that would decide the case. In re: Occupational Safety and Health Administration, Interim Final Rule; COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, Issued on November 4, 2021, MCP No. 165 (Nov. 16, 2021). All other circuits, including the Fifth Circuit, then transferred their cases challenging the ETS to the Sixth Circuit, which consolidated them.

On November 23, OSHA filed with the Sixth Circuit an emergency motion to dissolve the Fifth Circuit's stay of the...