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What’s Happened with OSHA’s ETS in Court

Numerous lawsuits have been filed across the country, including 27 state attorneys general, against OSHA’s new emergency temporary standard (ETS) applicable to most employers nationwide with 100+ employees.  The Fifth Circuit Court of Appeals wasted no time in right away that the ETS is temporarily “stayed” (or paused) nationwide while the Court asked the parties to submit briefs addressing what the Court believes may be “grave statutory and constitutional issues.”  Later in the week on November 12, the Court the nationwide pause, citing the ETS as “overly broad.”  We encourage employers to read the court order to learn the reasoning behind the stay, but the end result of their decision is the following order:

“Enforcement of the OSHA Covid-19 Vaccination & Testing Emergency Temporary Standard (ETS) remains STAYED pending adequate judicial review of the petitioners’ underlying motions for a permanent injunction.  In addition, IT IS FURTHER ORDERED that OSHA take NO Steps to implement or enforce the Mandate until further court order.“

All of the petitions will be consolidated to one circuit chosen by lottery, which was scheduled to occur on Tuesday, November 16, 2021.  The Sixth Circuit was chosen to review the matter.

Items Employers Should Prioritize Right Now

IMA recommends that all employers continue to provide a safe workplace by following the federal recommendations for cleaning, reporting, paid time off, air ventilation, etc.  The provisions below should continue to be pursued as much as is feasible:

• Have a COVID-19 policy that details:
  • Reporting a COVID-19 positive test and communicating with employees of potential exposure
  • Any available paid time off for vaccination, to recover from side effects of vaccination, and to quarantine
  • Cleaning and disinfecting procedures
  • Ventilation should increase outside air, enhance types of filters used in HVAC units, keep employees properly separated as feasible, etc.
• Communicate with employees on your COVID-19 policy and plan of action
• Identify your company’s current vaccination rate among all employees and maintain a confidential roster
• Determine what your company will do if the OSHA ETS is upheld and ultimately enforced
  • Decide if the company will mandate vaccines or will allow unvaccinated employees to test weekly?
    • OSHA provided policies to use
    • Fisher Phillips also has a lot of available including sample policies and forms
  • If allowing tests, will the company administer and/or pay for testing or connect employees with community resources to get tested?
  • Decide on logistical solutions

Provide Public Comments

OSHA has provided a for employers and employees to consider submitting public comments by December 5, 2021.  There are specific elements they definitely want input on as they consider making these requirements permanent and potentially expand them to employers with fewer than 100 employees.  Your voice related to feasibility, economic, and other impacts the mandates would have are greatly welcomed.

Lawsuits Underway re: Mandates on Federal Contractors/Subcontractors and Health Care

It’s also worth noting that the mandates on health care workers and federal contractors/subcontractors have also been challenged in court by numerous states.  At this time, the Centers for Medicaid and Medicare Services (CMS) is stating health care employers that “fit the industries identified” are to continue to implement the mandate applicable to them.  We advise employers contact their attorney for further guidance.

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.