By Renee Mielnicki, Esquire
As most of you know, the Emergency Temporary Standard (“ETS”) was published in the Federal Register per the Executive Order of President Biden on November 5, 2021. It didn’t take long for a slew of legal challenges to be filed in the courts. The day after the ETS became effective, the United States Court of Appeals for the Fifth Circuit issued an Emergency Order temporarily staying the ETS. Both the plaintiffs and the government had a chance to file briefs before the Fifth Circuit regarding their respective legal arguments before the Court reaffirmed its Order staying the matter on November 12th.
Since similar legal challenges were filed in other federal Circuit Courts, a Multi-District Litigation Lottery system was used to select one Federal Circuit Court to decide the merits of all challenges to the ETS. The lottery was done on November 16, 2021, and the U.S. Court of Appeal for the Sixth Circuit was selected.
A Quick Refresher on Who is Covered by the ETS
The ETS generally applies to employers in all private workplaces with a total of at least 100 employees. This threshold determination is made based on the number of employees the employer has companywide, not by worksite location.
Coverage determinations can be tricky and must be made as of November 5, 2021. Employers with 100 or more on that date will be covered until the ETS expires. Since this is a temporary standard, it would be generally effective for six (6) months. For employers that fluctuate above and below the 100-employee threshold, there are some special rules. If an employer does not have 100 employees as of November 5th, but later hires more workers and hits the 100-employee threshold, the employer will be covered for the remainder of the time that the ETS is in effect, regardless of fluctuations in the size of the employer’s workforce.
The ETS does not apply to the following:
- State and local government employers in states without state plans since they are exempt from OSHA coverage. However, in states with OSHA-approved state plans, these employers with 100 or more employees will be covered by state occupational safety and health requirements which must be at least as effective as the ETS;
- Any workplace covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or settings where any employee provides healthcare services or healthcare support services when subject to the requirements of the Healthcare ETS;
- Employees who do not report to a workplace where other individuals such as coworkers or customers are present;
- Employees while they are working from home; and
- Employees who work exclusively outdoors.
The Current Legal Status of the ETS
As of now, the ETS is stayed by the Order of the Fifth Circuit Court. In addition, OSHA put the following statement on their ETS webpage:
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) (“ETS”). The court ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.
The Role of the Sixth Circuit Court
The Sixth Circuit Court will now issue a decision regarding all legal challenges to the ETS. We expect their decision to take more than a few weeks due to the number of legal challenges made and the complexity of the arguments involved. Since a majority of the judges on the Sixth Circuit Court were appointed by a Republican President and are likely ideologically opposed to the ETS, we expect this Court to stay the ETS as well.
Next Steps After the Sixth Circuit Court Issues Its Decision
After the Sixth Circuit issues its decision, it can be appealed to the United States Supreme Court, which is the highest Court in this country. While we cannot predict whether such an appeal will take place or the timing, we don’t anticipate resolution to be quick. We also suspect that the U.S Supreme Court may fail to uphold the ETS since most of the current Justices were appointed by a Republican President. In any event, if this matter is ultimately heard before the U.S. Supreme Court, its decision will become the law of the land.
What Employers Covered by the ETS Should Do Now
As explained above, the ETS was originally effective on November 5th. All of the ETS compliance dates were set to December 5th, except for testing, which was set for January 5th. Even if the ETS becomes effective, it seems unlikely that employers will need to meet these specific deadlines since OSHA has suspended activities related to enforcement of the ETS. As already stated, we expect resolution of legal challenges will take more than a few weeks.
Covered employers do not have to comply with the ETS while it’s stayed. However, some of our clients haven chosen to do so, while others are drafting policies and putting procedures in place in case the stay is lifted. Employers who choose to take no preparatory action at this time may be putting themselves at risk of not being in compliance with the ETS should it become effective.
How We Can Help You Prepare for the ETS
Our HR Team has prepared a toolkit to help covered employers comply with the ETS if it does become effective. Our toolkit has all of the policies and forms needed to comply. If you would like information about our toolkit, please contact our HR Team by calling 724-864-8745 or emailing us at firstname.lastname@example.org. We will be happy to help!
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