New York, N.Y. (November 17, 2021) - Our recent alert described the OSHA emergency temporary standard (ETS) - promulgated on November 5, 2021 - requiring vaccinations or testing by employers with at least 100 employees, which was issued in response to President Biden's directive of September 9. We advised as to the planned dates by which covered employers had to become compliant, as well as the measures required to achieve compliance. However, OSHA has announced a suspension of activities related to the implementation and enforcement of the ETS in light of the November 12 decision by the Fifth Circuit Court of Appeals to stay the ETS. Both the time frames for compliance and whether compliance will ever be required are now in doubt, pending a full ruling as to the enforceability of the ETS.

The Fifth Circuit's strident take signaled that it was very likely to decide that the ETS was unenforceable. The court observed that the rule "grossly exceeds OSHA's statutory authority" such that the challenge was likely to succeed on the merits. Among other things, the court questioned whether the COVID-19 pandemic was the type of emergency that is permissibly addressed by an emergency temporary standard and observed that this ETS was both "staggeringly overboard" and "underinclusive."

The prospects for saving the rule may have improved somewhat in light of yesterday's development that took the case away from the Fifth Circuit. Although the Fifth Circuit was the first court to take action, multiple lawsuits filed all over the country have challenged the legality and scope of the ETS. With that in mind, the United States Panel on Multi-District Litigation conducted a lottery to determine which court would hear all the lawsuits collectively. The Sixth Circuit was selected. There is no set time frame for the Sixth Circuit's potential ruling.

While it is highly unlikely that large employers will be required to comply with the ETS in the immediate future given the need for full briefing, argument, and issuance of a decision (to say nothing of a potential stay while U.S. Supreme Court review is pursued), employers may still want to develop contingency plans in case the rule is ultimately upheld and in light of the possibility that a revised rule could be adopted at some point. Of course, given the lingering pandemic, employers must remain vigilant about measures to protect their workforce and visitors to their facilities, especially in light of existing federal, state, and local rules and regulations. The optimists among us may be thinking that the ETS will be mooted by the time the appeal is decided as the pandemic wanes. But employers must be more cautious given the need to make plans that are mindful of the uncertainty as to whether the pandemic will persist for a protracted period.

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