As predicted, the Emergency Temporary Standard (ETS) that OSHA published in the Federal Register on Friday was immediately challenged, and just one day after the publication, a federal appeals court suspended its implementation. The U.S. Court of Appeals for the Fifth Circuit noted "grave statutory and constitutional issues" in deciding to pause the ETS, which mandates COVID-19 vaccinations or weekly testing for most employees of employers with 100 or more workers, BTS Holdings v. OSHA, No. 21-60845 (5th Cir. Nov. 6, 2021). The court asked OSHA to respond to BTS Holdings’ motion for a permanent injunction today.
The ETS was challenged in multiple jurisdictions, and the federal rules dealing with "multi-circuit litigation" require that the cases be consolidated and heard by one court that is chosen by lottery. That lottery has not yet been conducted, and should the Fifth Circuit enjoin the ETS, the court that is ultimately chosen to hear the consolidated cases can lift that order.
The status of the ETS is in flux, and its ultimate disposition is far from certain. To help employers prepare for the possibility that the ETS will be reinstated, Warner will be conducting a one-hour webinar on Wednesday, November 10, 2021, at 12:00 noon EST. You can register for the webinar here. If you have any immediate questions about this suspension of the ETS, please contact your Warner attorney or a member of Warner’s Labor and Employment Practice Group.