3 Questions with Shiloh Theberge: OSHA COVID-19 ETS

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Shiloh Theberge

Shiloh answers questions about OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021.

There have been many recent developments with OSHA’s COVID-19 vaccine mandate rule. What’s the latest?

As a result of legal challenges, OSHA indicated on its website that it has suspended its activities relating to implementation and enforcement of the ETS pending future court action. It’s the latest development in this Emergency Temporary Standard (“ETS”), which OSHA first published in the Federal Register on November 5, 2021. On November 6, 2021, in response to legal challenges to the ETS, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the ETS on a nationwide basis. On November 12, 2021, the Fifth Circuit issued a permanent stay after reviewing the initial briefing by the parties. Subsequently, on November 16, 2021, the Judicial Panel on Multidistrict Litigation held a lottery to randomly select an appeals court to hear all of the consolidated cases challenging the ETS. The U.S. Court of Appeals for the Sixth Circuit emerged as the “winner” and the ETS remains there—at least until it makes its way to the U.S. Supreme Court.

Even though the implementation has been suspended, is there anything large businesses should do to prepare?

Despite the stay, we are recommending that employers begin taking some initial steps to prepare for the potential implementation of the ETS. Initial steps should include, for example, determining whether the employer is covered by the ETS, determining whether to mandate vaccination or allow for testing and face coverings as an alternative, setting up a procedure for determining and tracking employees’ vaccination status and verifying that vaccination status, drafting a written policy, determining testing procedures (if applicable), and designating a person or team who will be handling implementation of the ETS.

What is the timeline for what’s next?

With respect to the ETS, the deadline for employers to comply with all of the requirements aside from testing was December 5, 2021, and the deadline for employers to begin implementation of the testing requirements was January 4, 2022. It is unclear what will happen to these deadline if/when the courts lift the stay on the ETS.

With respect to the legal challenges to the ETS, the timeline is still uncertain.

To date, the Sixth Circuit has not issued a briefing schedule. Some legal commentators have indicated that it is possible that the U.S. Supreme Court will rule on the ETS as early as December, depending on the timing in the Sixth Circuit. However, new information is coming in on a daily basis, so stay tuned!

*Published 11-30-21